Ontario Labour Relations Board
[1991] OLRB Rep. November 1259
2306-91-G Sheet Metal Workers' International Association, Local 537, Applicant v. The Electrical Power Systems Construction Association, Bechtel Canada Inc., Respondents v. United Brotherhood of Carpenters and Joiners of America, Local 18, Intervener
BEFORE: Robert Herman, Vice-Chair, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: S. B. D. Wahl and N. Agnew for the applicant; Patrick Moran, Dawn Laird, Grant Brooks, Don Lyons for the respondents; Harold F. Caley and Bud Calligan for the intervener.
DECISION OF THE BOARD; November 13, 1991
This is an application pursuant to section 124 of the Labour Relations Act.
After entertaining the submissions of the parties, the Board delivered the following oral ruling:
The grievance before us has two parts. The applicant first asserts that through an assignment of work which resulted from a mark-up meeting in September, 1990, the applicant was assigned work which is currently being done by the intervener Carpenters, commencing as of September, 1991. In the alternative, the applicant asserts that a meeting convened by the respondent, Bechtel Canada Inc. in September, 1991, was not a proper mark-up meeting, in breach of the collective agreement. Implicit, or perhaps explicit in the wording of the grievance~ that meeting resulted in a wrongful assignment of certain work to the intervener.
However crafted, the grievance in question is over work which is now being done, as of September, 1981. An indication of this is that no grievance was filed after the mark-up meeting of September, 1990, but only after the work commenced in September, 1991. In a sense, this work is the work in dispute.
If we were to hear the grievance first, then insofar as the assignment resulting from the mark-up meeting of September, 1990 was concerned, the issue would be whether the work now being performed was in fact work assigned in that assignment. Given the nature of this aspect of the grievance, and given the remedies specifically sought by the applicant, the interests of the Carpenters are clearly involved in the resolution of those issues. At the same time, to answer the question whether there is a breach with respect to this aspect of the grievance would not necessarily solve the dispute among the parties. Neither would an answer to the second branch of the grievance, whether the company failed to hold a proper mark-up meeting in September, 1991. And with respect to this second alternative branch of the grievance, in any phase of the proceeding dealing with remedies, again the interests of the Carpenters might well be involved.
Since this dispute is in essence a dispute over the work now being performed, it appears that it is really at least in part a union - union dispute, with the interests of the Carpenters involved for at least significant parts of what would constitute the section 124 proceeding. In these circumstances, the Board considers it more appropriate to adjourn the section 124 application, to allow the parties to file a jurisdictional dispute pursuant to section 91 of the Act. This application will therefore be adjourned, on the basis that it is to be listed together with any jurisdictional dispute that is subsequently filed, rather than the application being deferred until a decision issues in any jurisdictional complaint. In this fashion, the real work dispute can be resolved among the three parties, while at the same time providing an opportunity to also litigate the section 124 issues which do not involve the resolution of the work assignment dispute per se.
Accordingly, this matter is adjourned, to allow any of the parties to file a jurisdictional dispute, within thirty days of November 7, 1991. In the event such a dispute is filed, the instant section 124 application will be listed together with that dispute, and both will proceed together. The panel which ultimately deals with the jurisdictional dispute can decide whether or how to procedurally deal with the two matters, and how to decide the issues before it.
If no jurisdictional dispute is filed by the above deadline, this section 124 application will be re-scheduled for hearing.