International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. E.S. Fox Limited, 1990 CanLII 5824

International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. E.S. Fox Limited

[1990] OLRB Rep. May 504

1585-88-JD International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Complainant v. E.S. Fox Limited, Pro Insul Limited, Sheet Metal Workers International Association, Local 562, Respondents v. Ontario Sheet Metal Workers' and Roofers' Conference, Intervener #1 v. Ontario Sheet Metal and Air Handling Group, Intervener #2 v. Master Insulators' Association of Ontario Inc., Intervener #3

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: D. A. McKee, M. A. Church, Joseph De Wit, Earl Walsh and Stanley W. Roos for the complainant; W. J. McNaughton for the respondent E.S. Fox Limited; L. A. Richmond and S. Raso for the respondent Sheet Metal Workers International Association, Local 562 and Intervener #1; Peter Chauvin for Intervener #2; Mark Contini and Ray Kurki for the respondent Pro Insul Limited and Intervener #3.

DECISION OF THE BOARD; May 15, 1990

1This is a complaint concerning the assignment of work (commonly known as a jurisdictional dispute) filed pursuant to the provisions of section 91 of the Labour Relations Act. When it came on for hearing on May 8, 1990, counsel for the respondent Sheet Metal Workers International Association, Local 562 ("Local 562") and the intervener Ontario Sheet Metal Workers' and Roofers' Conference (the "Sheet Metal Conference") sought an adjournment of the hearing. This request was opposed by the complainant, the respondents E.S. Fox Limited ("E.S. Fox") and Pro Insul Limited ("Pro Insul") and the intervener Master Insulators' Association ("Master Insulators").

2Counsel for Local 562 and the Sheet Metal Conference advised the Board that representatives of his clients were unable to attend the hearing because they were involved in negotiations for a new provincial agreement in the industrial, commercial and institutional sector of the construction industry. He submitted that because his clients have a right to attend the hearings, these should be adjourned until these representatives are able to attend. Counsel conceded that he had instructions and was able to proceed with his motion that the Board cannot or, in the alternative, should not, proceed with this jurisdictional dispute in the absence of those representatives, but submitted that he could not proceed on the merits of the complaint without them.

3It is well known that the Board will normally refuse to grant an adjournment except on consent of the parties or if it is satisfied that there are exceptional extenuating circumstances. It is the Board, and not the parties or any of them which is the master of its practice and procedure. In that regard, the Board's discretion with respect to whether or not adjournments should be granted is a broad one. A party which has had adequate notice of a hearing does not have a right to have it adjourned for its convenience or the convenience of any of its representatives (see Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Div. Ct.)). The Board recognized the importance of the provincial bargaining which was taking place and that representatives of parties to a proceeding before the Board have a right to be at the hearing. However, counsel for Local 562 and the Sheet Metal Conference had demonstrated no prejudice which would result in the Board proceeding with at least the argument of the motion described above, and for the purposes of which counsel would be their representative. Accordingly, the Board denied the request for an adjournment in that respect. In our view, it was premature to rule on the question of whether the hearing on the merits should be adjourned until it was necessary to determine that question.

4The work claimed to be in dispute by the complainant is the application of aluminium cladding or lagging over insulation applied to oven circulation ducts in the paint shop of the Toyota plant in Cambridge, Ontario. The respondents E. S. Fox and Pro Insul, and the intervener Master Insulators agree with the complainants description of the work in dispute. The respondent Local 562 and the intervener Sheet Metal Conference agree that the work in dispute includes that which is described by the complainant but add that it also includes "all work related thereto, including the application of insulation material, preparatory to applying the cladding or lagging".

5The work in question in this complaint was subcontracted by E.S. Fox to Pro Insul which assigned it to members of the complainant. On or about August 25, 1988, Local 562 filed a grievance against E.S. Fox alleging a violation of the subcontracting clause in the collective agreement between them. In September, 1988, this grievance was referred to the Board pursuant to the provisions of section 124 of the Labour Relations Act (Board File No. 1328-88-G). That matter was scheduled to be heard on September 12, 1988 but was adjourned to give the complainant herein, which had sought to intervene in the grievance proceeding, an opportunity to file this complaint concerning work assignment.

6This complaint then went through the pre-hearing process established by the Board for

such matters. In the course of that pre-hearing process, the Board issued a decision with respect to

a preliminary motion brought by Local 562 and the Sheet Metal Conference. After the pre-hearing process was completed, Local 562 withdrew the grievance in Board File No. 1328-88-G.

7Local 562 and the Sheet Metal Conference, supported by the Sheet Metal Group, submit that as a result of the withdrawal of the grievance, there is no longer any jurisdictional dispute before the Board and that no one is requiring that the assignment of the work in question be changed. Therefore, they submit, the Board no longer has any jurisdiction to inquire into the complaint. In the alternative, they submit that even if the Board does continue to have that jurisdiction, this is an appropriate case for the Board to exercise its discretion to not do so. They referred the Board to Bricklayers, Masons Independent Union of Canada, Local 1, [1978] OLRB Rep. June 495; Anchor Shoring Limited, [1982] OLRB Rep. Aug. 1122; Beverly Enterprises Canada Limited, [1985] OLRB Rep. Apr. 519; Magna International Inc., [1987] OLRB Rep. Apr. 742. request for reconsideration denied June 22, 1987 (unreported) and Commonwealth Construction Company (OLRB decision dated January 2, 1990 unreported).

8The complainant, strongly supported by E .S. Fox, Pro Insul and Master Insulators, argues that the Board continues to have jurisdiction to inquire into this complaint notwithstanding the withdrawal of Local 562's grievance. It points out that the Board has jurisdiction to inquire into a complaint that a trade union etc. "was or is requiring..." that an assignment of work be changed. It argues that this means that the Board may inquire into a jurisdictional dispute complaint any time a demand to change an assignment of work has been made, whether or not that demand is withdrawn. Further, the complainant, again strongly supported by Pro Insul and Master Insulators, urged the Board to exercise its discretion to inquire into the complaint. The complainant submits that the real dispute between the parties continues to exist and will likely have to be litigated in the future. It argues that the Board should therefore deal with it now for future purposes. The complainant points out that the parties have been put to great expense in this proceeding and that all of the time and money which have been put in to it will be for nought if this matter does not proceed. The complainant referred the Board to Scope Mechanical Contracting Limited, [1984] OLRB Rep. Feb. 371 and Steen Contractors Limited, [1986] OLRB Rep. May 677 in support of its position.

9Section 91(1) of the Labour Relations Act provides that:

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.

10We find it unnecessary to determine whether the Board has jurisdiction to inquire into a complaint concerning work assignment in circumstances like those in this case. Assuming, without finding, that the Board does have the jurisdiction to continue to inquire into the merits of this complaint, this is, in our view, an appropriate case for the Board to exercise its discretion to not do so. (We do note, however, that we find much merit in the submission that the Board is without jurisdiction to do so. In that regard, we prefer the suggestion that the words "was or is requiring" in section 91(1) refer to whether or not the work in dispute has been completed to the submissions of the complainant in that respect. In our view, it would make little sense, from either a labour relations perspective or otherwise, to interpret section 9 1(1) in a way which would effectively prohibit a party which has made a demand that certain work be assigned in a different way from withdrawing that demand in every case: See Anchor Shoring Limited, supra,; Commonwealth Construction Company, supra; but see Scope Mechanical Contracting Limited, supra for a contrary view.)

11Scope Mechanical Contracting Limited, supra, was a complaint concerning the assignment of work (i.e. a jurisdictional dispute). One of the respondents had filed two grievances: one against the employer which had assigned the work in question to members of another trade union, and one against the general contractor alleging that it had improperly subcontracted the work in question to the employer which had assigned the work. Both grievances were referred to the Board pursuant to section 124 of the Act. Subsequently, the grievance against the employer which had assigned the work in question was withdrawn with leave of the Board. Consideration of the second grievance was deferred pending the disposition of the jurisdictional dispute. The respondents argued that the Board had no jurisdiction to inquire into the jurisdictional dispute because the grievance against the employer which had assigned the work in question had been withdrawn and there was therefore no one requiring that the work assignment be changed. The Board referred to Napev Construction Ltd., [1980] OLRB Rep. Feb. 247 and was satisfied that the grievance against the general contractor could not give rise to a complaint under section 91 (see also Harold R. Stark Co. Ltd., [1982] OLRB Rep. Feb. 222, April 5,1976). The Board held that notwithstanding that the grievance against the employer which had assigned the work had been withdrawn, the necessary demand that the work assignment be changed had been made and that the Board had jurisdiction to inquire into. However, there is no indication on the face of the Board's decision in Scope Mechanical Contracting Limited, supra, that the Board was asked to or that it considered whether it should inquire into the complaint even if it had the jurisdiction to do so. Because we have determined that it is appropriate for us to exercise our discretion to not inquire into this complaint even if we have the jurisdiction to do so, the Scope Mechanical Contracting Limited, supra, decision was of little assistance to us and we decline to comment on it further.

12In Steen Contractors Limited, supra, the Board drew an analogy between a jurisdictional dispute proceeding and a civil proceeding in which a claim and counter-claim is made and to a mechanic's lien action in which a number of claims are made. With great respect, neither analogy is, in our view, an apt one. First, in a civil proceeding, a claim and counter-claim are considered to be separate actions within the same proceeding. In a complaint under section 91, there may be competing claims for the work in question, but there is only one action. Second, labour relations considerations are very important in jurisdictional disputes but have little or no place in civil proceedings or mechanic's lien actions. It was precisely such labour relations considerations which led the Board to deny the complainant's request for leave to withdraw its complaint in Steen Contractors Limited, supra. In paragraph 16 of that decision, the Board explained its reasons in that respect as follows:

16. In the instant case, therefore, while it may not make sense to compel Plumbers' Local 463 to pursue its initial claim in spite of its request to withdraw it, there are good labour relations reasons for not allowing Local 463 to bring to an end the proceedings with respect to Labourers Local 597's counter-claim to the work. First, the work in dispute herein has been and remains a source of conflict between the two trade unions in the Oshawa area, conflict which has demonstrated a potential for causing unlawful strikes. Therefore, it makes labour relations sense that the Board proceed to determine the merits of the dispute, as Labourers' Local 597 and the intervener have argued. Second, in view of the Board's comments at paragraph 16 of its decision in the Stark case, supra, about the problems of dealing under section 124 of the Act with what is essentially a work assignment dispute, it also makes labour relations sense that the determination be made in the context of a section 91 complaint rather than leaving it to arise again as a referral of a grievance under section 124. Given the purpose of section 91 and the fact that Plumbers' Local 463 initially came before the Board with a request for an inquiry into its claim concerning a work assignment dispute and with a request for an interim order, which it obtained, the Board is of the view that this is a case where the complainant should not be permitted to unilaterally cause the proceedings to be terminated. To allow Local 463 to do so would mean that the conflict which gave rise to the complaint would remain unresolved. The Board is not prepared to have that happen. Moreover, Local 463 has enjoyed the benefit and protection of the Board's interim order and, having set in motion a request for a final order or direction respecting the work in dispute, it should not be permitted to deprive Labourers' Local 597 and the intervener of the opportunity to have their interests in a potentially disruptive dispute protected by means of an adjudication of the matter on its merits.

[emphasis added]

13In this case, there is no indication that the work in question is a source of conflict with the demonstrated or any potential for causing unlawful strikes. Second, this is not a case in which Local 562 or the Sheet Metal Conference seek to have the proceedings terminated after having obtained the benefit of some interim relief with respect to the work assignment in question. In short, the labour relations considerations which led the Board in Steen Contractors Limited, supra, to exercise its discretion to inquire into the complaint in that case are not present in this one. Accordingly, it too was of little assistance to us.

14The Board is an adjudicative tribunal, not an advisory body (except where the statute specifically enables the Minister to refer to the Board any question that arises with respect to the Minister's authority to make an appointment under sections 16, 44 or 45 of the Act). Accordingly, the Board does not normally embark upon inquiries into academic or hypothetical questions (see, for example, Magna International Inc., supra; Beverly Enterprises Canada Limited, supra; Daynes Health Care Limited, [1983] OLRB Rep. May 632). The Board's function is to determine labour relations matters brought before it under the Labour Relations Act or other legislation (like, for example, the Occupational Health and Safety Act, R.S.O. 1980 Chapter 321 and the Colleges Collective Bargaining Act, R.S.O. 1980 Chapter 74). In our view, it would be generally futile and perhaps counterproductive for the Board to engage in speculation with respect to disputes which have not developed either to the point that they have been brought before the Board or at all.

15Perhaps the Board will have to deal with a jurisdictional dispute like this one in the future. Perhaps not. If it does, who can say what differences there will be between this dispute and one which may come before the Board in the future? Any future case may well involve work which is somewhat different, it may involve different parties, it may involve a different geographic area, and it may even involve a different sector of the construction industry.

16In jurisdictional disputes, which are difficult enough to determine even with the benefit of evidence and representations from the parties which are affected by the dispute, it is rarely possible and generally inappropriate for the Board to attempt to determine anything more than the complaint before it. Similarly, attempts at advance rulings are generally inappropriate. The impact that the Board's jurisdictional dispute jurisprudence has on a future case is best left to be determined in that future case.

17It is fundamental to a complaint concerning the assignment of work that there be a dispute concerning the assignment of some specific work. Where there is no demand that some specific work be assigned in the manner different from the way it was assigned, there is no continuing dispute concerning the assignment of work and no jurisdictional dispute which is appropriate for the Board to inquire into in the absence of extraordinary circumstances (as in, for example, Steen Contractors Limited, supra).

18In this complaint, the demand that the assignment that the work described in paragraph

4 above be changed came in the form of the grievance which has since been withdrawn. Accordingly, there is no longer any trade union which is requiring that that work assignment be changed.

19To proceed with an inquiry into a complaint where its basis has disappeared would tend to emasculate the pre-hearing procedure which has been adopted by the Board in complaints concerning work assignments. The purpose of that pre-hearing procedure is to encourage the resolution of jurisdictional disputes without a determination by the Board. Such resolutions can and sometimes do include the withdrawal of the complaint or the demand which led to it being made after the discovery afforded by the Board's pre-hearing process, and, in some cases, a determination of issues which, though they are preliminary in nature, tend to shape the litigation. Also, and perhaps more importantly, to proceed with a jurisdictional dispute in such circumstances will not usually further harmonious labour relations. Indeed, it would likely have quite the opposite effect.

20We recognize the expense (in terms of both time and money) that the parties have incurred in this matter. The fact that Local 562 has decided to retract its demand that the work assignment in question be changed shows that this has not been for nought. In any event, the fact that expenses have been incurred is not a reason to require a matter to continue to be litigated to the bitter end and certainly does not, in our view, constitute "prejudice" within the meaning of that term in law. We also observe that if, as the complainant fears, a complaint is made to the Board with respect to the same or substantially the same work, some or all of the parties will be able to draw upon the time and money invested in this proceeding in the course of that one. If there is no such future complaint, there is no point at all to forcing this proceeding forward.

21In short, we are not satisfied that there is any cogent reason to proceed further with this complaint. On the other hand, the labour relations considerations favour not proceeding with it. In the result, we find it appropriate to exercise our discretion to not inquire further into this complaint. The complaint is therefore dismissed.