[1990] OLRB Rep. May 521
1608-89-G International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 721, Applicant v. Foundation Company of Canada Limited, Respondent v. Labourers' International Union of North America, Local 506, Intervener #1 v. Duron Ontario Ltd., Intervener #2
BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. O. Shamanski and C. A. Ballentine.
DECISION OF THE BOARD; May 9, 1990
This is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act.
In a decision dated January 9, 1990 the Board determined that the circumstances giving rise to the grievance did constitute a jurisdictional dispute under section 91 of the Act. Our reasons for so finding are as follows.
The respondent ("Foundation") is a general contractor in connection with the construction of Terminal III, Lester B. Pearson International Airport ("the project"). Foundation is bound by both the applicant's ("Ironworkers") (Rodmen) provincial agreement and Intervener #1's ("Labourers") provincial agreement. Foundation sublet to Intervener #2 ("Duron") certain work in connection with the placing of concrete toppings at the parking garage at the project and, in particular, the placing of wire mesh associated with such concrete toppings ("the work in dispute"). Duron is bound by the Labourers' provincial agreement but not by the Ironworkers' (Rodmen) provincial agreement. Duron assigned the work in dispute to members of the Labourers and applied the Labourers' provincial agreement to this work. The subcontract agreement between Foundation and Duron requires Duron to utilize only workmen on the site who are members of the appropriate Toronto Construction Association affiliated unions for the work being performed.
B. Nilsen is Foundation's area manager on the project. Representatives of the Ironworkers met with Nilsen on September 21, 1989 and with Nilsen and A. Jordan, project manager, on September 29, 1989. T. Almeida was the principal spokesperson for the Ironworkers. The Board finds it unnecessary to detail what was discussed on these two occasions. In essence, the Ironworkers took the position with Foundation that the work in dispute fell within the jurisdiction of its trade union and should be performed by its members. The Ironworkers asked Foundation to take back the work in dispute from Duron and to subcontract the work to a subcontractor in contractual relations with the Ironworkers. The Ironworkers referred to Foundation the names of some contractors who could perform the work in dispute. Given what Almeida said to Nilsen on September 21, 1989, Nilsen assumed that the Ironworkers would attempt to shut down the project if Foundation did not comply with its request.
On September 21, 1989, after meeting with the Ironworker representatives, Nilsen sent a transmission by fax to Duron, the material portion of which reads as follows:
Local 721 - Iron Workers have indicated that placing of the rebar and wire mesh, in the topping, is their work. Please confirm that you are using Local 721 members to place rebar & mesh.
Work stoppage has been threatened if we do not conform.
Duron responded to the above transmission in a way which indicated that Duron and the Labourers were strongly of the view that the work in dispute fell within the Labourers' jurisdiction.
- On September 26, 1989, the Ironworkers filed the following grievance against Foundation:
Be advised that we hold you in violation of our collective agreement, in particular Article 2. The nature of the grievance is that the company has sublet the wire mesh at Terminal Three Parking Garage Airport to a company which is not in contractural [sic] relationship with the International Association of Bridge Structural and Ornamental Ironworkers or any of its affiliated local unions. By way of settlement the union seeks payment of wages, benefits and other remittances that should have been paid to our members and to the union. If no settlement is made within 24 hours of receipt of this telegram application will be made under section 124 of the ontario labour relations act requesting damages for violation of the agreement plus legal fees.
After obtaining legal advice, A. Jordan sent a letter dated September 27, 1989 to Duron which stated the following:
In connection with the Terminal III project, Lester B. Pearson International Airport, we have received a grievance from The International Association of Bridge Structural and Ornamental Iron Workers, Local 721 dated September 26, 1989. (Hereinafter referred to as the "Ironworkers Grievance".) Please find enclosed a copy of the Iron workers' grievance, dated September 26, 1989. The Iron Workers' grievance concerns the placing of concrete toppings which is now being performed at the Parking Garage at Terminal III by Duron Ontario Ltd. (Hereinafter referred to as the "work") or more specifically the placing of wire mesh associated with these concrete toppings.
We wish to remind you that, in accordance with your contract agreement, you must provided [sic] the correct union affiliated workmen to perform the above-noted work.
Pursuant to the Iron Workers' grievance, we are hereby required to direct you to employ members of The International Association of Bridge Structural and Ornamental Ironworkers, Local 721 to perform the above-noted work at the Terminal III project immediately.
When it sent the above letter to Duron, Foundation did not expect that Duron would comply with its request in the circumstances and, therefore, it was not surprised when Duron did not comply with its request.
At the meeting on September 29, 1989, Foundation proposed to the Ironworkers that the work in dispute continue to be performed by Duron with Labourers for the remainder of 1989 and that the parties would attempt in some way to resolve the issue. The Ironworkers agreed to the proposal. On October 4, 1989, members of the Ironworkers working for certain contractors on the project established a picket line at the project at the start of the work day which lasted for approximately two hours. It is clear that the members of the Ironworkers were picketing in response to the Labourers performing the work in dispute. The project was basically shut down for the day as a result of the picketing activity. A few days later, Foundation deferred the performance of the work in dispute until the 1990 season.
Section 91(1) of the 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.
As the wording of the above provision indicates, a jurisdictional dispute within the meaning of section 91 of the Act will exist where an agent of a trade union was or is requiring an employer to assign particular work to persons in a particular trade union rather than to persons in another trade union. The parties agreed that Duron is the employer since it is the entity assigning the work in dispute. Since the Ironworkers did not make a direct approach to Duron, the focus of the parties' submissions was on whether Foundation was the agent of the Ironworkers when it directed Duron to employ members of the Ironworkers to perform the work in dispute.
Foundation, Duron and the Labourers take the position that the filing of the grievance by the Ironworkers and the direction to Duron by Foundation to employ Ironworkers to perform the work in dispute are circumstances sufficient to constitute a jurisdictional dispute within the meaning of section 91 of the Act. In essence, it is argued that these circumstances indicate that the Ironworkers want its members to perform the work in dispute and that Foundation, after receiving the Ironworkers grievance, acted as the Ironworkers' agent when it directed Duron to employ Ironworkers to perform the work in dispute. In support of their position, these parties relied on Regina v. Ontario Labour Relations Board, Ex parte International Association of Bridge, Structural & Ornamental Iron Workers, Local 736, [1969] 1 0. R. 405; Beer Precast Concrete Limited, [1969] OLRB Rep. Jan. 1108; Donaldson-Barron Limited, [1976] OLRB Rep. Dec. 793; Napev Construction Ltd., [1980] OLRB Rep. Feb. 247; Pre-Con Company, A Division of St. Mary's Cement Limited, [1981] OLRB Rep. July 947; Harold R. Stark Company Limited, [1982] OLRB Rep. Feb. 222; Four Seasons Drywall Systems and Acoustics Limited, [1989] OLRB Rep. June 599.
Counsel for the Ironworkers argued that the facts do not support the conclusion that Foundation was acting as the Ironworkers' agent when it sent the letter of September 27, 1989 to Duron. Counsel noted that the Ironworker representatives did not ask Foundation to assist them in obtaining the work in dispute for their members from Duron. Rather, it was emphasized that the Ironworkers' complaint to Foundation was that it had improperly subcontracted out the work in dispute and that this work should be taken back from Duron and subcontracted to an Ironworker subcontractor. Counsel also noted that no one, especially Foundation, would have expected that Duron would assign the disputed work to the Ironworkers when requested to do so by Foundation. The Ironworkers relied on certain passages from Bowstead on Agency and Bruton v. Regina City Policemen's Ass'n, Local No. 155, 1945 CanLII 232 (SK CA), [1945] 3 D.L.R. 437 (Sask. C.A.), Abe Dick Masonry Limited, [1976] OLRB Rep. Jan. 74 and Day Signs Limited, [1976] OLRB Rep. May 217.
Having regard to the purpose of the Act and, in particular, the purpose of section 91 of the Act, the Board has given the word "agent" in section 91(1) of the Act a broad interpretation. The Board has taken the same approach in its interpretation of the word "agent" as Fraser, J. in Regina v. Ontario Labour Relations Board, Ex parte International Association of Bridge, Structural & Ornamental Iron Workers, Local 736, supra, when he made the following comments:
In my opinion the word "agent" as used in s. 66(1) is used in its ordinary colloquial sense. The Oxford English Dictionary (1988 edition) gives as one of the meanings of agent:
- Of persons: One who does the actual work of anything, as distinguished from the instigator or employer; hence, one who acts for another, a deputy steward, factor, substitute, representative or emissary. (In this sense the word has numerous specific applications in commerce, politics, law, etc., flowing directly from the general meaning.)
Having regard to its context and the purpose of the statute in which it is found I am satisfied that "agent" in s. 66 is used in its broad general sense rather than in a narrow specialized sense such as is found in the law of contracts. To hold that a union could avoid the effect of s. 66 by interposing some third person or agency to do the requiring would give s. 66 an unduly restrictive meaning and frustrate the plain purpose of the enactment.
- In determining on the facts before us that Foundation was acting as agent for the Ironworkers, the Board has adopted the general approach of the Pre-Con company decision. In our view, the general position of the Ironworkers was that it wanted its members to perform the work in dispute. Although its representations to Foundation indicated that it wanted to obtain the work in dispute in a particular way, the Ironworkers' ultimate goal was to obtain the work in dispute. In response to receiving the Ironworkers' grievance, Foundation directed Duron to employ Ironworkers to perform the work in dispute. In effect then, Foundation's response to the grievance was to make a direction to Duron consistent with the ultimate object of the Ironworkers. In determining in a broad general sense whether Foundation was acting as an agent for the Ironworkers in the circumstances of this case, the Board's focus must be on what the Ironworkers ultimately wanted and not the process by which it wanted to attain its objective. Although Foundation did not expect anything to change, nonetheless it did, on behalf of the Ironworkers, request Duron to alter the assignment of the work in dispute. In what is very much a typical dispute over work jurisdiction, the Board was satisfied in these circumstances that Foundation was acting as the Ironworkers' agent when it directed Duron to employ ironworkers to perform the work in dispute and that the circumstances giving rise to the grievance before us constituted a jurisdictional dispute within the meaning of section 91 of the Act.