Labourers' International Union of North America, Local 183 v. International Union of Operating Engineers, Local 793, 1990 CanLII 5945

Labourers' International Union of North America, Local 183 v. International Union of Operating Engineers, Local 793

[1991] OLRB Rep. February 199

3097-89-U; 3163-89-U Labourers' International Union of North America, Local 183, Complainant v. International Union of Operating Engineers, Local 793, Respondent; International Union of Operating Engineers, Local 793, Complainant v. Labourers' International Union of North America, Local 183, Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: L. A. Richmond, T. Dionisio, J. Diaz and J. Kovacs for the Labourers', Local 183; Dave Watson, Richard Kennedy, Vito Monteiseono and Jack Slaughter for Operating Engineers, Local 793.

DECISION OF THE BOARD; November 8, 1990

1These two complaints were filed pursuant to section 89 of the Labour Relations Act ("the Act"). In each instance the applicant asserts that the respondent has violated sections 67 and 70 of the Act. For ease of reference the parties to these proceedings will be referred to as the Labourers and the Operating Engineers.

2The Board notes that a number of companies carrying on business as "Landscape Contractors" were named as parties potentially affected by the complaints and were duly served with notice of the date, time, place and purpose of hearing. None of these companies appeared at the hearing before us on September 18, 1990. The Board was advised by counsel for the Labourers that one of the companies had been present while the parties met with a Labour Relations Officer and attempted to resolve this matter on the morning of the day scheduled for hearing. That company was Lakeshore Landscape Associates (I.C.I.) Ltd. which has been improperly named in the correspondence from the Board as Lakeshore Landscape Associates (1984) Ltd. That company did not participate in the hearing but advised Labourers' counsel that it wished to continue to be advised of future hearing dates in this matter.

3Both the Labourers and the Operating Engineers have made preliminary motions in which each asks that the Board dismiss the complaint filed by the other.

4The Operating Engineers submit that the Labourers' complaint should be dismissed because it does not raise a prima facie case and/or the complaint is, at its root and substance, a jurisdictional dispute which should not be dealt with the in the context of an unfair labour practice complaint. The Operating Engineers ask us to exercise our discretion and refuse to hear the complaint for that reason. The Labourers submit that the Operating Engineers' complaint should not be heard by the Board because of undue delay.

5For the purpose of dealing with each of these preliminary motions we have assumed that the facts as pleaded by each party are true. We have also considered the documents referred to in those pleadings as well as a number of documents which the parties agreed could be admitted as evidence for purposes of this preliminary motion only. Those documents would have to be proved in the usual course if either of these complaints proceed to a hearing on the merits.

6In order to get the full flavour of each party's complaint against the other it is convenient to set out verbatim the pleadings of the parties.

The Complaint of the Operating Engineers

The Complainant relies on the following statement of material facts:

(i) Since at least 1976, the Complainant and the Respondent have negotiated Collective Agreements covering employees employed in landscaping performing work in Ontario Labour Relations Board Area Numbers 8 and 18 for whom the respective unions have bargaining rights.

(ii) There has been a single document containing two (2) Collective Agreements. The Recognition Clause in the current combined Collective Agreements, which is similar to the Recognition Clauses in preceding Collective Agreements reads as follows:

The Employer recognizes the Union as the bargaining agent for and this Collective Agreement shall apply to all of its employees employed in its landscaping division in Ontario Labour Relations Board Area Numbers 8 and 18.

(iii) The composition of the bargaining committee representing the Complainant and Respondent in negotiations with the relevant Employers has varied over the years. On certain occasions representatives of both the Complainant and Respondent have attended. On other occasions, the Complainant has given the Respondent specific instructions as to its demands for inclusion in the Collective Agreement, and the Respondent's representatives have conducted the face to face bargaining on behalf of both the Complainant and the Respondent.

(iv) In negotiations for the 1988-1990 renewal of the Agreement, the latter practice prevailed. Mr. Richard Kennedy, Labour Relations Manager of the Complainant, gave Mr. Anthony Dionisio, President of the Respondent, specific instructions as to the items which the Complainant wished included in its portion of the relevant Collective Agreement. Mr. Dionisio conducted the actual face to face negotiations with the relevant Employers. At no time was Mr. Dionisio authorized to change the content of Article XII, nor at any time did he inform the Complainant that he was negotiating to do so.

(v) After the Respondent had completed negotiations of the Collective Agreement on behalf of both the Complainant and the Respondent, representatives of the Respondent repeatedly refused to provide copies of said Agreement to the Complainant. Representatives of the Complainant consulted with legal counsel as to whether an Unfair Labour Practice Complaint should be lodged against the respondent in order to obtain copies of the Collective Agreement. In the interest of trade union solidarity and co-operation, the Complainant decided not to pursue this approach.

(vi) The Complainant received actual notice of the purported changes made to Article XII of the Collective Agreement after Mr. Ed Sherwin, Business Representative of the Complainant, attended at a pre-job conference in July, 1989 concerning landscaping work at an Ontario Hydro site. Ontario Hydro then raised the issue of certain work being awarded to the Labourers' Union on the basis of the 1988-1990 Landscaping Agreement. Mr. Sherwin then alerted Mr. Kennedy to this fact, and finally the Complainant's representative obtained a copy of the 1988-1990 Landscaping Agreement which Mr. Kennedy discovered contained significant incursions into the Complainant's bargaining rights.

(vii) Unbeknownst to Mr. Kennedy, by this time, the Respondent had forwarded certain copies of the Collective Agreements with various relevant Employers to the Complainant for signature. A few of these Collective Agreements were inadvertently signed on behalf of the Complainant by some of the Complainant's business representatives. Once Mr. Kennedy became aware of the purported changes to Article XII, no further of the individual Agreements were signed. Mr. Kennedy decided that the best method for remedying the problem was to resolve the matter in the course of 1990-1992 negotiations.

(viii) The purported changes to Article XII objected to by the complainant are the inclusion of the following classifications in the Local 183 category:

Drillers of all types, high pressure water equipment, small trenchers, mini skid steer loaders and all similar small equipment.

It is noteworthy that similar proposals were made by the Respondent in its negotiations with the Metropolitan Toronto Road Builders' Association, Metropolitan Toronto Sewer and Watermain Contractors' Association and Utility Contractors Association of Ontario Agreements in the 1988-1990 round of negotiation, and prompted Unfair Labour Practice Charges by the Complainant in O.L.R.B. File Numbers 3384-87-U and 3497-87-U. The eventual result of these complaints was that these proposals were withdrawn by the Respondent and did not form part of the above-noted Collective Agreements. These proposals have apparently been re-submitted by the Respondent in those sets of negotiations for the 1990-1992 term and the Complainant has again filed Unfair Labour Practice Charges as a result of this.

(ix) At the 1992 [sic] negotiations with the relevant Employers (the identity of which is set out in Schedule "D" attached hereto) the Complainant has tabled a proposal on classifications that reflects its traditional work jurisdiction in the landscaping, utility, road building and sewer and watermain sectors, which reflects what the Complainant authorized the respondent to negotiate in the 1988-1990 Agreement. Unfortunately, the Respondent misrepresented its bargaining authority to the relevant Employers and thus attempted to transfer a portion of the Complainant's bargaining rights to itself. Later the Respondent sought to conceal its activities to the greatest extent possible and now claims that the Complainant has acquiesced to this unauthorized and improper change in classifications.

(x) Therefore, the Complainant complains that the Respondent has purported to bargain for and continues to purport to bargain for bargaining rights now held by the Complainant with the relevant Employers, and will continue negotiations to an impasse to attempt to maintain the bargaining rights always held by the Complainant. The Complainant further complains that the Respondent's Employers will be forced to accede to the unlawful demands of the Respondent to avoid a strike by the Respondent.

(xi) Hence, it is the position of the Complainant that the actions of the Respondent are in blatant violation of Sections 67 and 70 of the Ontario Labour Relations Act.

The Complaint of the Labourers

1. For a number of years the Labourers International Union of North America, Local 183 and the International Union of Operating Engineers, Local 793 have negotiated collective agreements covering employees employed in landscaping performing work in Ontario Labour Relations Board Areas No. 8 and 18 for whom the respective unions have bargaining rights.

2. There has been a single document containing two collective agreements. The recognition clause in the current combined collective agreements, which is similar to the recognition clause in preceding collective agreements, reads as follows:

1.01 The employer recognizes the union as the bargaining agent for, and this collective agreement shall apply to, all of its employees employed in its Landscaping Division, in Ontario Labour Relations Board Area No. 8 and 18.

3. Over a period of time, Labourers' Local 183 has played the dominant role in negotiating the combined landscaping agreements with the individual employers concerned.

4. In 1988-1990, the collective agreements were negotiated in a similar fashion; Mr. A. Dionissio, on behalf of Labourers', Local 183 and various representatives of the respective employers negotiated the agreements. Local 793 at no time disputed anything in the 1988-1990 collective agreements.

5. The respective bargaining units of the two unions are set out in Article XII of the combined landscaping agreements.

6. As the date approached for negotiations for the 1990-1992 landscaping agreements, Mr. Dionissio informed Mr. Kennedy of Local 793 that the negotiations were upcoming. On the first day of negotiations, Mr. Dionissio attended on behalf of Labourers', Local 183, Mr. Vito Monteiseono and Mr. John Monty attended the negotiations representing Local 793. At these negotiations, representatives of Local 793 questioned the make up of the labourers' bargaining unit set out in Article XII of the collective agreements.

7Following the initial negotiation meetings, the Operating Engineers, Local 793 submitted proposals for the renegotiation of the landscaping agreements for the period 1990- 1992.

8. Local 793's proposal regarding Article XII unambiguously claims to represent and bargain on behalf of employees in the bargaining unit of Labourers' Local 183.

9. The Labourers' International Union of North America, Local 183 complains that the International Union of Operating Engineers, Local 793 has, by bargaining to alter Article XII of the combined landscaping collective agreements violated section 67(2) to the Ontario Labour Relations Act. The Operating Engineers' are attempting to bargain with or enter into a collective agreement covering employees of various employers in circumstances where those employees are represented by labourers' Local 183.

10. In addition, the Labourers' complain that Local 793 will continue negotiations to an impasse to obtain the bargaining rights now held by Labourers' 183. The Labourers' complain further that the various employers party to the landscaping agreements will be forced to accede to the unlawful demands of Local 793 to avoid a strike by Local 793.

11. The complainant complains that the actions of the respondent Local 793 thereby violate s.67(2) and s.70 of the Labour Relations Act

7In addition to these pleadings, the agreed upon documentation and certain undisputed facts referred to in argument indicate the following events after the filing of these complaints. We note that the Labourers' application was filed March 15,1990. The Operating Engineers' application was filed March 20, 1990.

8On April 14, 1990 "No Board Report(s)" were issued. Those No-Board Report(s) purported to relate to each of the individual employer landscape contractors (who were bound to the 1988-1990 agreement with the Labourers and Operating Engineers) and the two unions. After the issuance of the No-Board Report(s) the Labourers engaged in lawful strike activity. Thereafter, the Labourers entered into a Memorandum of Settlement settling a new collective agreement for May 1, 1990 to April 30, 1992 with the relevant employers. That Memorandum of Settlement does not on its face refer to or otherwise bind the Operating Engineers. The Operating Engineers trade union was not a party to that Memorandum of Settlement.

9In his submissions to the Board counsel for the Operating Engineers stated that the union does not view itself bound by the Minutes of Settlement or the collective agreement entered into by the Labourers. He indicated that the Operating Engineers have, since the No-Board Report(s) entered into collective agreements with certain employers previously signatory to the expired collective agreement between the employers and the Operating Engineers and the Labourers. The Operating Engineers continue to attempt to negotiate with other relevant employers.

10In our view and as noted below, these intervening events have affected and altered the remedies for relief requested by each of the parties in their complaints. In its claim for relief the Operating Engineers sought the following.

The Complainant request the following relief:

(i) a Declaration that the Respondent have violated Sections 67 and 70 of the Ontario Labour Relations Act;

(ii) an Order that the Respondent cease and desist from violating the Ontario Labour Relations Act as aforesaid;

(iii) a Declaration that the changes to Article XII purportedly effected by the 1988-1990 agreement between the Respondent and the relevant Employers are a violation of the Ontario Labour Relations Act;

(iv) an Order that the Respondent withdraw its proposal to include said purported changes to Article XII or any similar proposals as items for negotiation between the Respondent and the relevant Employers;

(v) a Declaration that the purported changes to Article XII of the 1988-1990 agreement, and any agreement to include them in any other Collective Agreement between the Respondent and the relevant Employers is null and void;

(vi) an Order that the Respondent cease interfering with the bargaining rights of the Complainant;

(vii) an Order that the Respondent post and/or mail notices detailing their violations of the Ontario Labour Relations Act on all job sites where the Collective Agreement between the Respondent and the relevant Employers is in effect;

(viii) an Order that the Respondent compensate the Complainant for all losses incurred as a result of the Respondent's violations of the Ontario Labour Relations Act, including interest thereon and legal fees; and

(ix) such further and other relief as may be appropriate.

In his submissions counsel for the Operating Engineers asked the Board to fashion an "appropriate" remedy for the breaches of the Act committed by the Labourers. In so doing, counsel argued that where there is a wrong there should be a remedy.

11In its complaint the Labourers request relief similar to that found in the Operating Engineers' complaint. The Labourers for example seek a declaration that the Operating Engineers' proposal in respect of wage rate and classifications to the landscape contractors with whom it seeks to negotiate a collective agreement violates the Labour Relations Act, must be withdrawn by the Operating Engineers, and is null and void if included in any collective agreement entered into between the Operating Engineers and the relevant employers.

12The crux of the complaints before us is the Operating Engineers' assertions that during the bargaining for the 1988-1990 collective agreement Mr. Dionisio exceeded his jurisdiction by negotiating changes to the "Wage Rates and Classifications" to the detriment and prejudice of the Operating Engineers. The Operating Engineers allege that the jurisdiction and right to represent which it asserts over employees employed in the classifications of "drillers of all types, high pressure water equipment, small trenches, mini skids steer loaders and all other similar small equipment" was taken away from its "classifications" and placed under those classifications recognized in the collective agreement to be "Labourers" classifications.

13Prior to the 1988-1990 agreement Article XII stated as follows:

ARTICLE XII - "WAGE RATES AND CLASSIFICATIONS" FOR LOCAL 183

May 1/86 May 1/87 Labourers (including sod roller operators) $13.17 $13.69

Landscape Gardeners, Farm tractors without excavating attachments, fork lifts, truck drivers, load bearing boom trucks, Operators, machine driven tools on any other equipment that is operated by remote control $13.32 $13.84

Form Setters, concrete finishers, landscape stone setters, landscape brick setters, landscape irrigation, pipelayers, float drivers, Reinforcing steelman $13.67 $14.19

For Local 793

Grader Operator $14.67 $15.24 Dozer & Loader Operator & Backhoe Operator $14.57 $15.14

Drivers of Farm Tractor with pulverizing or fine grading equipment $14.42 $14.99

The 1988-1990 agreement reads as follows (the changes are underlined):

ARTICLE XII - "WAGE RATES AND CLASSIFICATIONS" FOR LOCAL 183

May 1/88 May 1/89

1. Labourers (including sod roller operators) $15.19 $16.29

2. Landscape Gardeners, Farm tractors without excavating attachments, fork lifts, truck drivers, load bearing boom trucks, Operators, machine driven tools on any other equipment that is operated by remote control $15.34 $16.44

3. Form Setters, concrete finishers, landscape stone setters of all types, landscape brick setters, landscape irrigation, pipe layers, float drivers, reinforcing steelmen, drillers of all types, high pressure water equipment, small trenchers, mini-skid steer loaders, and all other similar small equipment $15.69 $16.79

For Local 793

1. Drivers of Farm Tractor with pulverizing or fine grading equipment $16.49 $17.59

2. Dozer & Loader Operator & Backhoe Operator $16.64 $17.74

3. Grader Operator $16.74 $17.84

14The Operating Engineers submit that the changes to Article XII negotiated by the Labourers interfere with the Operating Engineers' right to represent employees in its bargaining unit and is contrary to section 67(2). The Operating Engineers allege the Labourers' conduct violates section 67(2) as the Labourers have "bargain[ed] with or enter[ed] into a collective agreement with an employer or an employer's organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them" represented by the Operating Engineers. They also assert the Labourers' conduct violate section 70.

15For their part the Labourers assert that the Operating Engineers' attempts to "rectify" or "alter" (for want of better words) its classification clause in the 1990-1992 collective agreement is similarly a violation of section 67(2) and section 70. The changes to the wage rates and classification clause proposed by the Operating Engineers in the current bargaining would include in its classification the following:

FOR LOCAL 793

12

1. Operators of: Farm Tractors with attachments, Compactors - Self Propelled, Davis Ditchers and other similar equipment, Kubota type Backhoes and Combination type similar equipment, Skid Steer Loaders and similar equipment.

2. Operators of: Bulldozers, Scrapers, Emcos, Front End Loaders, Overhead Loaders and similar equipment.

3. Operators of: Backhoes, Graders, Mechanics.

4. Operators operating equipment requiring licensed or certified Operators shall be paid wages and conditions according to the prevailing Area Agreement for the class and character of the work being performed.

This, it is asserted by the Labourers, is a violation of section 67(2) and section 70.

16The Board has carefully considered the submissions of the parties and hereby dismisses both applications insofar as the applications allege a violation of section 70. Neither the pleadings nor the agreed upon documentation or facts disclose that either trade union has sought by intimidation or coercion to compel any person to refrain from exercising rights under the Act. At best the circumstances disclose that each of the trade unions has sought to gain through collective agreement negotiations certain advantages for itself and its members which adversely affect the other union. Each union is attempting to assert its own claim to certain work or its own claim to represent particular employees. That does not constitute a violation of section 70.

Decision in respect of the Complaint by the Labourers

17Counsel for the Labourers asserts that its complaint is not rooted in a jurisdictional dispute. He argues that the dispute between the two unions is "which union represents persons who do this work". He submits that there is a clear separation between the concepts of "jurisdiction” and "bargaining rights" and that the Labourers' complaint is in respect of the latter. The issue is not about which union has the work, but which of the two unions has the bargaining rights to represent the employees doing the work.

18We do not agree. In our view the complaint of the Labourers is, at its root, nothing more than a jurisdictional dispute under the guise of an unfair labour practice complaint and tenuous assertions about an interference with, or derogation of bargaining rights. There is nothing in the pleadings or the documents which have been admitted into evidence which indicates that the Operating Engineers are attempting to represent employees in a bargaining unit represented by the Labourers. We find the following statements of the Board in Ontario Hydro, [1985] OLRB Rep. Feb. 307 at 310 to be equally applicable to the case at hand:

…….In our opinion the complainant and the respondent trade unions are confronting each other over a perceived overlap in work jurisdiction and not with respect to bargaining rights. The Board has previously considered complaints under what is now section 89 of the Act with respect to section 67 (formerly section 59). In Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022, the Board stated at page 1034:

Nor can it be said that the subcontracting clause interferes with another union's bargaining rights contrary to section 56 [now section 64] and 59 [now section 67] of the Act. In the Board's view, there is no exact equation between bargaining rights and work jurisdiction, as the complainant attempted to make out. while the Board recognizes that, without a supporting work jurisdiction, bargaining rights in the construction industry may wither, the two concepts are not congruent. Under the Labour Relations Act, bargaining rights acquired either through the certification process or by voluntary recognition only entitle a union to be recognized as the exclusive bargaining agent for a particular group of employees. The bargaining rights conferred by law do not give a union any particular work jurisdiction, and any claim to a work jurisdiction must be asserted and established in the bargaining process through such means as a sub-contracting provision. Sections 56 [now section 64] and 59 [now section 67] of the Act are intended to protect bargaining rights only and these sections cannot be interpreted as providing protection to a work jurisdiction. Conflicting claims to a particular work receive much different legislative treatment, being subject to the procedure established in section 81 [now section 91] of the Act for the resolution of jurisdictional disputes.

The Board dismissed the complaints with respect to the sections referred to in the quotation and several other sections of the Act.

8. In Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451, the Board also considered whether the work jurisdiction and bargaining rights are synonymous and the relative place of jurisdictional disputes and stated at page 456:

While the Board recognizes that bargaining units are often defined in terms of certain job classifications or work categories, these descriptions do not mean that the bargaining agent has an absolute right to the work being performed by the group of employees falling within such job classifications. The reference to work categories in the bargaining unit descriptions, although serving to identify the employees falling within the bargaining unit, does not by itself create an unqualified entitlement to that work. The fact is that some other bargaining agent may also have bargaining rights for other employees of that same employer that are defined in terms of different work categories, and some of the work performed by the employees falling within these work categories may overlap to some degree that of the other group of employees. Job categories are not watertight and, in fact, there may be considerable leakage between categories, giving rise to competing claims for work from bargaining agents. This sort of problem, as a general rule, is not treated as one involving representation rights of the competing bargaining agents but as a dispute over work jurisdiction. The Act contemplates that such competing claims to work are to be resolved through the jurisdictional dispute procedures set out in section 81 [now section 91].

and again at page 457:

The Board is convinced that this complaint is nothing more than a latent jurisdictional dispute. It is clear to us that the complainant, by framing its argument in terms of a derogation of bargaining rights, is attempting to assert an absolute claim to the work in question. If the Board were to grant the remedy requested by the complainant, it would have the effect of preventing the respondent union from making any claim to the work in question. Even if Local 35-P has the better claim to the work in question, and we make no finding in this regard, such a claim should be asserted through the jurisdictional dispute provisions under section 81 of the Act, and not by means of an unfair labour practice complaint.

Decision in respect of the Complaint by the Operating Engineers

19Counsel for the Operating Engineers asserts that its complaint is "qualitatively different" than the complaint filed by the Labourers. He submits that the complaint involves "representational" and not "jurisdictional" claims.

20Counsel for the Operating Engineers has argued that prior to the 1988-1990 collective agreement in which the Labourers' Representative "usurped" the Operating Engineers' bargaining rights, the collective agreement between the relevant employers and the Labourers and Operating Engineers was a "Council type" agreement. Although there was only one document, that document encompassed two separate collective agreements relating to two separate bargaining units -one collective agreement which each employer had with the Operating Engineers and one collective agreement which each employer had with the Labourers. Together, that document covered the "all employee" bargaining unit referred to in the recognition clause. He submitted that in a "Council-type" collective agreement, changes to the classification and work jurisdictions of one of the trade unions necessarily affects the other trade union's representational rights. He argued that in a "Council-type" agreement, one cannot "give" a classification and the right to represent employees in that classification to one union without at the same time decreasing the other trade union's right to represent employees.

21Counsel for the Operating Engineers argued that given this "Council-type" agreement, the conduct of Mr. Dionisio during the negotiations for the 1988-1990 agreement was an interference with the Operating Engineers' bargaining rights. Counsel asserted that Mr. Dionisio bargained with a view to having the Labourers represent employees whom he knew were in the Operating Engineers' bargaining unit encompassed in the collective agreement.

22In our view, the alleged conduct of Mr. Dionisio does not make the Operating Engineers' complaint "qualitatively different". Mr. Dionisio's conduct does not alter the fact that the Operating Engineers' complaint is also, in substance, a dispute about jurisdiction.

23During the negotiations for the 1988-1990 collective agreement, the Operating Engineers explicitly gave Mr. Dionisio authority to bargain on its behalf and took no part in the negotiations. Mr. Dionisio was the Operating Engineers' negotiator or representative at the bargaining table. The Operating Engineers' complaint is about the conduct of its own representative at the bargaining table. In these circumstances the Operating Engineers cannot complain that it is a violation of the Labour Relations Act that the person which it appointed to represent it during the negotiations is not bargaining in the manner desired or instructed.

24In our view, even if the facts as pleaded by the Operating Engineers did raise a prima facie case we would exercise our discretion and decline to hear the complaint because of delay and because in any event we would not grant the remedy or relief requested.

25On its face the complaint refers to conduct which occurred during the 1988-1990 collective agreement negotiations. The Operating Engineers' assertions that it did not have actual knowledge of the conduct cannot, in the circumstances of this case, excuse the delay in filing this application. The Operating Engineers trade union is an experienced trade union which ought to have known the terms and conditions of the collective agreement which had been negotiated on its behalf and to which it was bound.

26The delay is particularly damaging because of the intervening events. It is admitted that during the 1990-1992 negotiations each of these trade unions has gone its own way to negotiate its own collective agreement with the relevant employers. After its strike action the Labourers have negotiated a collective agreement which includes the very same provisions which the Operating Engineers desire the Board to declare null and void in paragraph 5 of its Claim for Relief. There has not been an allegation that any of the employers bound to the 1988-1990 collective agreement, or any of the employers bound to the 1990-1992 collective agreement with the Labourers have violated the Labour Relations Act. Even if we had jurisdiction to do so, in these circumstances the Board would not declare null and void any part of the collective agreement as against an employer party who had not breached the Act (see Cuddy Food Products Ltd, [1988] OLRB Rep. Dec. 1211 and the cases referred to therein for an analysis which addresses whether the Board has such remedial jurisdiction and the circumstances in which it should be exercised.) Similarly, we are of the view that in the circumstances of this case, the other remedial relief sought by the Operating Engineers is not appropriate even if we found that the Labourers had breached the Act.

27Counsel for the Operating Engineers has indicated that the Operating Engineers have and continue to negotiate collective agreements with the relevant landscape contractors. In the "Proposals for the Landscape Agreement" tabled by the Operating Engineers and tendered as an agreed upon document the Operating Engineers have proposed, for example that "skid steer loaders and similar equipment" be added under the wage and classifications of the Operating Engineers in Article 12 of the Agreement. The Operating Engineers assert that such a proposed amendment does not interfere with or encroach upon the bargaining rights and classifications of the Labourers as it does not delete any part of the Labourers' classifications. Nonetheless the Operating Engineers trade union is "concerned" that if it continues to assert its bargaining rights to represent employees employed in such classifications, the Labourers (who already have collective agreements with the same employers which also contain these classifications) will engage in conduct which will thwart or hinder the ability of the Operating Engineers to negotiate changes to the classifications found in the expired 1988-1990 agreement. In this regard counsel referred to the potential of "picketing" by the Labourers and the fact that the Labourers might file complaints or grievances against either the employers or the Operating Engineers seeking damages. For this reason counsel for the Operating Engineers urges us to adjudicate upon its complaint. In effect he seeks ultimately to obtain a determination that "skid steer loaders and similar equipment" properly fall within the Operating Engineers' classifications and were improperly and in violation of section 67(2) placed in the "Labourers"' classifications during the 1988-1990 negotiations.

28In our view, counsel's submissions in this regard are speculative insofar as they assert conduct in which the Labourers might engage. In addition~ these submissions again highlight that in fact both these complaints in essence involve a jurisdictional dispute. As stated by the Board in Ontario Hydro, supra, jurisdictional disputes should not be adjudicated under the guise of a section 89 complaint but should be dealt with in the manner and procedure set out in the Act and the Rules.

29For all of these reasons both of these complaints are dismissed.

30The Registrar is directed to send a copy of this decision to Lakeshore Landscape Associates (I.C.I.) Ltd.