The Ontario Allied Construction Trades Council v. The Electrical Power Systems Construction Association, 1990 CanLII 5708

Ontario Labour Relations Board

[1990] OLRB Rep. October 1092

Parties

2286-89-G The Ontario Allied Construction Trades Council on behalf of Lake Ontario District Council of United Brotherhood of Carpenters and Joiners of America, Applicant v. The Electrical Power Systems Construction Association and Ontario Hydro and Schindler Elevator Corporation, Respondents v. Interna­tional Union of Elevator Constructors, Local 50, Intervener

Panel

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

Counsel

APPEARANCES: David A. McKee and Quintin Begg for the applicant; Robert J. Atkinson and Jerry Knight for Ontario Hydro and The Electrical Power Systems Construction Association; no one appeared on behalf of Schindler Elevator Corporation; B. Chercover, C. Murray, T. McCann and G. Brouillette for the intervener.

Decision

DECISION OF THE BOARD; October 24, 1990

1. This is a referral to the Board of a grievance in the construction industry pursuant to the provisions of section 124 of the Labour Relations Act.

2. The applicant grieves "that EPSCA and Ontario Hydro have failed to hold a mark-up meeting with respect to the construction of scaffolding for erection of elevators. Contract No. NK­38RH-76220-0". The applicant asserts that the respondents have violated "articles 9.1, 9.2, 10.2 and any other relevant article" of the collective agreement between the Electrical Power Systems Construction Association (i.e. "EPSCA") and the Ontario Allied Construction Trades Council ("the EPSCA agreement"). As a remedy, the applicant seeks "that a mark-up meeting [sic] be held and that the employer [sic] compensate the union for the loss attributable to the violation of articles 9.1, 9.2 and 10.2".

3. The grievance was filed on October 18, 1989 and was referred to the Board on Decem­ber 15, 1989. Although Schindler Elevator Corporation ("Schindler") was not referred to in the grievance, it was named as a respondent to the section 124 referral. (We note that, notwithstanding articles 1.3 and 1.6 of the EPSCA agreement, the applicant admits that Schindler is not bound by the EPSCA agreement. In that respect, counsel for the applicant advised the Board that Schindler had been erroneously named as a respondent in this proceeding and requested, both by letter dated and delivered October 5, 1990 and orally at the hearing on October 9, 1990, that the "style of cause" herein be amended by deleting Schindler "as a respondent" - although in the same letter counsel states that Schindler should have been named as an interested party.)

4. The grievance was scheduled to be heard by the Board on January 4, 1990. Subsequent to that date being fixed for hearing, the International Union of Elevator Constructors, Local 50 ("Local 50") wrote to the Board requesting that it be "informed of any future meetings on this matter as one of the parties involved is a signatory company of the International Union of Elevator Constructors".

5. It is evident that the "signatory company" referred to is Schindler. In response, the Registrar advised Local 50 of the January 4 hearing date. On agreement of the parties, the January 4, 1990 hearing date was adjourned and rescheduled for April 2, 1990. At the request of "counsel for the respondents", the parties, which apparently did not include Local 50, agreed to adjourn that date to May 7, 1990. The parties agreed to adjourn the May 7, 1990 date as well. Again the Board accommodated them and rescheduled the matter for hearing on October 9, 1990.

6. In the interim, by letter from counsel dated May 8, 1990, Local 50 advised the Board of its intention to intervene in this referral and put the Board and all parties on notice that it took the position that this matter is in essence a jurisdictional dispute and that it intended to request that the determination of the section 124 referral be deferred in order to permit the jurisdictional dis­pute to be resolved in accordance with the provisions of section 91 of the Labour Relations Act.

7. Local 50 did file an intervention and appeared at the hearing on October 9, 1990 at which time it argued as advertised; namely, that because the applicant's claim for damages was in a nature of a "loss of opportunity" claim, it was, at its core, a complaint concerning work assignment or, in other words, a jurisdictional dispute. Local 50 argued that it therefore directly affects its interests because the applicant would have to establish a right to work in the face of what Local 50 asserts is a lengthy history of such work being assigned to its members. Local 50 therefore requested that the section 124 proceeding be adjourned to give it an opportunity to file the appro­priate complaint under section 91 of the Act (which it undertook to file) and submitted that the Board should defer consideration of the grievance herein until the complaint concerning work assignment was disposed of. Local 50 is not part of the Ontario Allied Construction Trades Council and is not bound by the EPSCA agreement. It does not seek status to participate in this proceeding except for the purpose of bringing this motion.

8. EPSCA and Ontario Hydro supported Local 50's position. (We note that no one filed an appearance at the hearing on behalf of Schindler. Although counsel for EPSCA and Ontario Hydro indicated that he nominally spoke for Schindler as well, the appearance he filed was specifically limited to being on behalf of EPSCA and Ontario Hydro. There were representatives of Schindler present in the hearing room but they made no attempt to address the Board.)

9. The applicant advised the Board that the documentation it received with respect to a "mark-up meeting" held in January 1984 with respect to the construction of eleven elevators at the Darlington nuclear power facility made no reference to the erection of scaffolding. Counsel admit­ted that the applicant received notice of the "mark-up meeting", that the documentation specified that the work which was the subject of the mark-up meeting was the construction of elevators, and that the applicant is well aware that the erection of scaffolding is normally a part of such construc­tion. However, the applicant denied that its grievance herein raises a jurisdictional dispute or that it constitutes a demand for the work in question (that is, the erection of scaffolding associated with the construction of an elevator (the last of the eleven) at the Darlington nuclear facility), which has been completed. Counsel referred the Board to portions of articles 9 and 10 of the EPSCA agree­ment in that respect.

10. In support of the applicant's submission that this is not a case in which it would be appropriate for the Board to adjourn to permit a jurisdictional dispute complaint to be filed and determined, counsel referred the Board to Ontario Hydro, [1986] OLRB Rep. May 663 (the "Gray decision"); Ontario Hydro, Board File No. 2405-86-M, September 12, 1987, unreported, and see also Ontario Hydro, [1986] OLRB Rep. Oct. 1386 (both of which we will refer to as the "McCor­mack decisions"); and Ontario Hydro, [1988] OLRB Rep. Dec. 1303 (the "Freedman decision"). Counsel asked, rhetorically, why Local 50 had not already filed a complaint concerning work assignment when it had for so long been aware of the applicant's grievance. He also argued that a determination of a jurisdictional dispute would not dispose of the applicant's grievance.

11. The Gray decision deals with the question of the status of a third party which has some contractual or proprietary rights under a contract with the employer to intervene in a section 124 proceeding. Because Local 50 is not seeking to participate in the hearing of this referral on its mer­its, that decision is of no assistance to us.

12. The Freedman decision deals with a grievance which alleged that the respondents (there, as here, EPSCA and Ontario Hydro) had violated the EPSCA agreement (as it then was) by failing to convene a "mark-up meeting" before assigning certain pipe installation work. In that case too, it was asserted that the nub of the grievance was a work assignment dispute and that the Board should therefore decline to hear it. In that case, however, the work assignment dispute had been submitted to and determined by the Plan for Settlement of Jurisdictional Disputes in the Con­struction Industry. The Freedman panel concluded that what was left of the dispute related to the application and administration of the EPSCA agreement. It went on to find that Ontario Hydro had breached the collective agreement by failing to hold a "mark-up meeting" with respect to the work in question and awarded loss of opportunity damages for that breach to the grieving trade union. On the face of the Freedman decision, it appears that the jurisdictional dispute aspect of the grievance before the Freedman panel had already been determined and that the Board was satis­fied in that case that there was no reason to defer consideration of the grievance before it.

13. One of the issues addressed in the McCormack decision is the very one raised by Local 50 in this proceeding. In the grievance before the McCormack panel, the applicant trade union alleged that the "employer" had violated the collective agreement binding on the parties by failing to hold a "mark-up meeting" with respect to certain work. In the grievance before the McCormack panel, the trade union was not asking that a "mark-up meeting" be held or specifically requesting that the work in question be assigned to its members. Rather, as in the grievance herein, it sought damages for the loss of opportunity resulting from the alleged breach. Faced with the motion to defer consideration of the section 124 referral until a jurisdictional dispute could be filed and dis­posed of, the McCormack panel concluded that the dispute before it was essentially one regarding the interpretation of a collective agreement and had only remote jurisdictional implications. The McCormack panel concluded that the grievance before it was not really a jurisdictional dispute and, further, that it was not appropriate to defer consideration of it until a jurisdictional dispute was filed and disposed of. We note that the McCormack panel went on to find that the respondents (also EPSCA and Ontario Hydro in that case) had breached the EPSCA agreement by failing to hold a necessary "mark-up meeting". However, it declined to award the "loss of opportunity" damages sought because the trade union had failed to act promptly with respect to its grievance.

14. The provisions of the EPSCA agreement which the applicant grieves the respondents are in breach of are directed at dealing with jurisdictional claims of the trade oriented construction trade unions. There avowed purpose is to minimize the potential for jurisdictional disputes.

15. Further, where a grievance is allowed, the appropriate remedy is to put the aggrieved party as closely as possible into the position it would have been in but for the respondent's wrong­ful conduct. Damages for "loss of opportunity" are sometimes claimed, and are appropriate, in that respect. Such damages are often difficult to assess but a wrongdoer cannot be relieved from paying damages merely because they are difficult to assess. Nevertheless, an aggrieved party must still adduce sufficient evidence to establish, on a balance of probabilities, both the opportunity that it claims it lost and the damages it asserts it suffered as a result. In that respect, it must demon­strate a reasonable probability that it would have obtained the benefit for which it seeks compensa­tion but for, in this case, the employer's breach of the collective agreement. A mere chance of ben­efit will entitle an aggrieved party to no more than nominal damages. And, as the Board and Divisional Court observed in Radio Shack (Canada) Limited, [1979] OLRB Rep. Dec. 1220; appli­cation for judicial review dismissed sub nomine Re Tandy Electronics Ltd. and United Steelworkers of America et al, 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29 (Div. Ct.); leave to appeal denied 30 O.R. (2d) 29n (Ontario Court of Appeal), damages will also be reduced in proportion to the contingencies to achieving the benefit claimed in the absence of the breach (see also Canadian Pacific Forest Prod­ucts Limited, [1990] OLRB Rep. May 492; Burlington Northern Air Freight (Canada) Ltd., [1987] OLRB Rep. Aug. 1064).

16. Accordingly, in this case, the applicant would have to establish that the respondents were required to and had failed to hold a proper "mark-up meeting" (which is what it has grieved) with respect to the scaffolding erection work in question and, before the Board would award the loss of opportunity damages sought, that it was entitled to be awarded that work and that there is a reasonable probability that it would have been assigned the work had the respondents not breached the collective agreement.

17. Section 91(1) of the Labour Relations Act provides that:

91.-(l) 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.

In the interests of labour relations stability in the construction industry, the Board has adopted a broader approach to jurisdictional disputes such that, once satisfied that it had the jurisdiction to do so, the Board will generally hear a complaint concerning work assignment on its merits. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dis­pute. When a complaint under section 91 is filed with respect to the same assignment of work which is the subject of a grievance which has been referred to it, the Board is faced with deciding how the dispute is best resolved. The purpose of section 124 is to provide an expeditious mecha­nism for resolving grievances in an industry in which the nature of the work and the structure of labour relations often renders ineffectual the kind of arbitration provisions typically found in col­lective agreements. On the other hand, section 91 is specifically designed to be the primary means by which jurisdictional disputes are to be resolved. Accordingly, although there may be circum­stances in which it is not appropriate to do so, the Board will generally defer consideration of a grievance until a real jurisdictional dispute which relates to the same assignment of work has been resolved. When faced with that kind of situation, the Board has generally concluded that the griev­ance constitutes a demand for the work in question (Eaman Riggs Limited, [1978] OLRB Rep. Mar. 228; Napev Construction Limited, [1979] OLRB Rep. Sept. 886; Pre-Con Company (A Divi­sion of St. Mary's Cement Limited), [1981] OLRB Rep. July 947; Ontario Hydro, [1982] OLRB Rep. March 428). It is clear that a jurisdictional dispute complaint need not be dispositive of a grievance before the Board will defer consideration of the latter. It is also far from clear that, in the circumstances of this referral, Local 50 should have filed a section 91 complaint prior to this. In any case, there is nothing which prevents Local 50 from doing so now. This would leave the Board faced with the same issue; that is, how to proceed.

18. In what appear to be similar circumstances, the McCormack panel found that the griev­ance before it had only a remote jurisdictional element to it. We agree that in the grievance herein, the question of whether the respondents, or any of them, have breached the EPSCA agreement has only remote jurisdictional implications. However, read as a whole, the McCormack decisions do not suggest that a claim for "loss of opportunity" damages said to arise from a failure to hold a "mark-up meeting" required by a collective agreement will never raise a substantial jurisdictional question. On the contrary, the grievance which has been referred to the Board hem demonstrates that it can. We are satisfied that because the applicant and the grievance before us must establish a right to the work in question and a reasonable probability that it would have been awarded that work before it can obtain the damages it seeks, matters in issue in the grievance go beyond ques­tions of collective agreement interpretation and have a substantial and proximate jurisdictional ele­ment and implications. A grievance which raises an issue of work assignment, even if only at the remedy stage, brings a dispute within the ambit of section 91 of the Act.

19. However, that substantial jurisdictional aspect does not arise, for practical purposes, unless and until the applicant has established that the respondents, or any of them, have breached the EPSCA agreement. If it is unable to establish such a breach or, in the alternative, if it is unable to establish an entitlement to the damages it seeks, any determination of the jurisdictional question will be largely academic.

20. In recent years, jurisdictional disputes have consumed an ever increasing and dispropor­tionate amount of the Board's resources. Far too often, the costs, both to the Board and (we ven­ture to say) to the parties, of jurisdictional dispute proceedings have far exceeded the value of any real or imagined benefit derived from them.

21. Consequently, even though we are satisfied that a jurisdictional dispute is at the root of the applicant's claim for damages, and that it would be appropriate to defer consideration of that question pending the disposition of the complaint concerning work assignment which Local 50 has undertaken to file, we are not inclined to have the Board embark upon the odyssey of a jurisdictional dispute when it is far from clear that there is any prospect that the applicant will succeed in its grievance herein, or that any useful purpose would otherwise be served by doing so.

22. The McCormack decision suggests a way to deal with the situation, like this one, where a grievance raises the spectre of a jurisdictional dispute which will not really crystalize, if at all, until the breach complained of is established and the question of remedy must be considered.

23. The Registrar is therefore directed to schedule this section 124 referral for hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to the issue(s) of whether the respondents, or any of them, have breached the EPSCA agreement as alleged in the grievance.

24. If the applicant does establish a breach of the EPSCA agreement, the Board will con­vene a hearing to hear the evidence and representations of the parties and Local 50 (which is to receive notice of this hearing) with respect to the applicant's theory of and entitlement to damages.

25. If it becomes apparent that the applicant's entitlement to establish a right to damages is consequent upon an assignment of the work in question, Local 50 will have 14 days to file a juris­dictional dispute complaint with respect thereto. If Local 50 (or anyone else) files such a jurisdic­tional dispute, the Board will defer consideration of that aspect of the applicant's claim for dam­ages herein pending the disposition of the jurisdictional dispute.

26. It would be appropriate to schedule a sufficient number of days for hearing at appropri­ate intervals at the outset, so that the potential for delays in the course of the proceeding is reduced.

27. In the result, Local 50's request for an adjournment of this referral is dismissed, but without prejudice to its right and ability to renew that request if the applicant succeeds in the phases of the referral set out in paragraphs 23 and 24 above.