United Brotherhood of Carpenters and Joiners of America, Local 1256 v. Vic West Steel Limited, 1991 CanLII 6040

[1991] OLRB Rep. January 111

2715-89-G; 0013-90-JD United Brotherhood of Carpenters and Joiners of America, Local 1256, Applicant v. Vic West Steel Limited, Respondent, Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers International Association, Intervener; Ontario Sheet Metal Workers' and Roofers' Conference Sheet Metal Workers International Association, Local 539, Applicant v. Vic West Steel and United Brotherhood of Carpenters and Joiners of America, Local 1256, Respondents, v. Ontario Sheet Metal and Air Handling Group, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and J. Redshaw.

DECISION OF THE BOARD; January 11, 1991

1. By letter from counsel dated December 12, 1990, the Ontario Sheet Metal Workers' and Roofers' Conference and the Sheet Metal Workers International, Local 539 (hereinafter jointly referred to as "Sheet Metal") seeks reconsideration of the Board's December 10, 1990 decision herein as follows:

We are in receipt of the decision of the Board dated December 10, 1990 and respectfully apply for reconsideration of the procedural direction contained therein.

On behalf of the Complainant, by letter dated December 5, 1990, we asserted that no procedural advantage was to be gained from an inquiry into the issue of the existence of bargaining rights between Carpenters, Local 1256 and Vic-West Steel. Counsel on behalf of Carpenters, Local 1256 also adopted this position by letter dated December 4, 1990.

Simply put, it is not the grievance filed by Carpenters, Local 1256 captioned as O.L.R.B. File No. 2715-89-G that "raises a spectre of a jurisdictional dispute". The Complainant has filed, and requires, the Board to hear and determine its Complaint Concerning Work Assignment captioned as O.L.R.B. File No. 0013-90-JD irrespective of the existence of or resolution of the Section 124 Referral of Grievance to Arbitration. Accordingly, there is no procedural advantage gained through the direction contained in the Board decision dated December 10, 1990.

Yours truly,

KOSKIE AND MINSKY

Stephen Wahl"

Stephen Wahl

In the December 5, 1990 letter referred to by counsel, Sheet Metal wrote:

We are in receipt of a letter dated November 26, 1990 in connection with the above-captioned matter requiring our representations with respect to procedure in the light of the Schindler Elevator Corporation case. We are also in receipt of a letter dated November 30, 1990 from counsel for the Respondent Vic-West Steel.

The Complainant Sheet Metal Workers withdraws its position denying bargaining rights held by Carpenters, Local 1256 with respect to Vic-West Steel and takes no position with respect to this issue.

Although the issue of the existence of bargaining rights may be relevant to the Referral of Grievance to Arbitration pursuant to Section 124 filed by Carpenters, local 1256, it is merely one factor that may enter into the considerations of the Board in the course of the above-captioned Jurisdictional Dispute. It is the position of our client that this Complaint Pursuant to Section 91 ought to proceed to hearing without further delay and specifically without awaiting a determination of the issue of Carpenters' Bargaining Rights.

Accordingly, we submit that the hearing scheduled for December 14, 1990 ought to proceed and resolve the issues listed in the Notice for Hearing. Thereafter, the merits of the Section 91 Complaint ought to proceed to hearing.

Yours truly,

KOSKIE AND MINSKY

"Stephen Wahl"

Stephen Wahl

Further, by letter dated and delivered December 13, 1990, counsel wrote that:

Further to our request for reconsideration of the Board's decision dated December 10, 1990 filed by our letter dated December 12, 1990, we have been informed that the Applicant Carpenters, Local 1256 and Respondent Vic-West Steel in the Referral of Grievance to Arbitration pursuant to Section 124 of the Act captioned as O.L.R.B. File No. 2715-89-G have agreed to adjourn the hearing scheduled for December 14, 1990.

In view of these events, the procedure adopted by the Board in its decision of December 10, 1990 has proved unworkable. The Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers, Local 539 filed an Intervention dated March 14, 1990 with respect to the grievance arbitration containing an undertaking to file the Section 91 Complaint Concerning Work Assignment. All parties to the Section 124 Grievance Arbitration agreed to adjourn those proceedings pending a resolution of the Section 91 Complaint. At no time did we or our client agree to an adjournment of the hearing scheduled for December 14, 1990 with respect to the grievance-arbitration. In the course of discussions with counsel for the other parties we acknowledged that our client had no interest in the issue of the existence of Carpenters' bargaining rights. That position was clearly taken in our letter of December 5, 1990.

Effectively, our client is being denied a hearing with respect to its Section 91 Complaint Concerning Work Assignment by virtue of the Board is [sic] procedural decision to await a resolution of the issue of bargaining rights in the context of the Section 124 Referral of Grievance to Arbitration. Our client is not prepared to have its Section 91 Complaint adjourned to the ionosphere while the other parties neglect to pursue the issue of bargaining rights in the context of the Section 124 Referral of Grievance to Arbitration. We require that the Board schedule our Complaint Concerning Work Assignment pursuant to Section 91 of the Act captioned as O.L.R.W File No. 0013-90-JD for hearing without further delay.

Yours truly,

KOSKIE AND MINSKY

"Stephen Wahl"

Stephen Wahl

2. Counsel has twice indicated that Sheet Metal "requires" the Board to proceed with the complaint in Board File No. 0013-90-JD. It is for the Board to determine whether it will inquire into a complaint concerning work assignment at all, and if it does, how it will do so. The Board is open to suggestions or submissions from parties with respect to how the Board should exercise its discretion in that respect, but no party is in a position to dictate to the Board in that respect.

3. A recurrent complaint from the labour relations community in recent years has been that jurisdictional disputes take too long and are too expensive to litigate before the Board. The community has complained that this situation has developed because the Board has failed to be sufficiently active in directing the proceedings. The Board has been aware of and sensitive to these concerns. It too has experienced some frustration in that respect. Jurisdictional disputes have come to consume an ever increasing and disproportionate amount of the Board's resources. It has become increasingly apparent that the costs of jurisdictional dispute proceedings, both to the Board and to the parties, often far exceed the value of any benefit derived from them. That situation is rapidly going from bad to worse.

4. Originally, the parties agreed among themselves that it would be appropriate to defer the section 124 proceeding herein pending a determination of the complaint concerning work assignment filed by Sheet Metal. The Board will generally proceed in accordance with an agreement between parties in hearings before it. However, it has become apparent that the nature and diversity of interests involved in disputes concerning work assignments are such that it is unrealistic to expect that either the labour relations community in general, or the parties to a particular dispute are likely to do anything to reverse or stop the escalation in the temporal or financial costs of litigating such complaints. It is therefore appropriate for the Board to look more closely at such proceedings, and, having regard to the discretion which the Board has under section 91 of the Labour Relations Act, to be more willing to question and determine how such litigation should proceed.

5. We do not understand Sheet Metal's assertion that "... it is not the grievance filed by Carpenters', Local 1256 captioned as OLRB File No. 2715-89-G that "raises a spectre of a jurisdictional dispute"." It is readily apparent that the complaint in Board File No. 0013-90-JD has been filed in response to the grievance referred to the Board in Board File No. 2715-89-G. In that respect, we note that the work in question has been assigned to members of Sheet Metal, the complainant in the jurisdictional dispute proceeding. In addition, whether or not the United Brotherhood of Carpenters and Joiners of America, Local 1256 ("Local 1256"), the applicant in the section 124 proceeding, holds any relevant bargaining rights with respect to Vic-West Steel (Limited) (a respondent in both proceedings) remains an issue in both proceedings, notwithstanding the alteration of Sheet Metal's position in that respect. In addition to maintaining that Local 1256 holds no relevant bargaining rights, it is now Vic West Steel (Limited)'s position that the Board should proceed to determine that issue first, in the context of the section 124 proceeding.

6. It is implicit in the manner in which the parties have conducted themselves that it is common ground that Local 1256's grievance constitutes a demand for the work in question. But if Local 1256 does not hold the bargaining rights upon which its grievance is based, its grievance will be dismissed. Since there does not appear to be any competing demand for the work in question independent of Local 1256's grievance in Board File No. 2715-89-G, there would no longer be a jurisdictional dispute within the meaning of section 91 of the Act.

7. Of course, if its grievance fails, Local 1256 could itself file a complaint under section 91 which, if it proceeded, would raise the same work assignment dispute as the present complaint. However, a very significant difference would be that the issue of Local 1256's bargaining rights

would have been determined as between the parties. It is true that the existence of bargaining rights is but one factor which the Board considers in determining jurisdictional disputes. However, a review of the Board's jurisprudence makes it readily apparent that it is a very significant factor where one of the trade unions involved holds relevant bargaining rights and the other does not. Consequently, a determination of the bargaining rights question is very likely to put the jurisdictional dispute into different perspective, whichever way it is determined, but particularly if Local 1256 is found to not hold any relevant bargaining rights. Consequently, resolving this issue before proceeding with a jurisdictional dispute may well reduce the costs of any jurisdictional dispute proceeding both to the Board (and therefore the taxpayer) and the parties.

8. In the result, we are not persuaded that it is either necessary or useful to proceed with the complaint concerning work assignment herein at this time. Nor are we satisfied that any prejudice will result to Sheet Metal if the Board proceeds to determine the bargaining rights issue in the section 124 proceeding first, given that the work assignment which is in dispute was made in favour of Sheet Metal and given that Sheet Metal now appears to take no position on the bargaining rights issue.

9. The complaint in Board File No. 0013-90-JD is not being adjourned to the "ionsphere" (defined as the ionized region of the upper atmosphere). At this point the complaint is being adjourned only to another time, not to another place. We also note that proceeding in the manner suggested by Sheet Metal would undoubtedly delay the section 124 proceeding far longer than the jurisdictional dispute complaint will be delayed by disposing of the bargaining rights issue in the section 124 proceeding. (Indeed, it may, as suggested above, obviate the need to proceed with the complaint at all). When the bargaining rights issue is disposed of in the section 124 proceeding, the Board will again assess whether it is necessary or appropriate to proceed with the jurisdictional dispute complaint. The Board is sensitive to Sheet Metal's concern that one proceeding not indefinitely delay another. If any abuse or prejudice becomes apparent in that respect, the Board can reassess the situation and, if necessary, take appropriate action.

10. Accordingly, the Board declines to reconsider its decision dated December 10, 1990 as requested by Sheet Metal.

11. We note that the parties (other than the intervener Sheet Metal it appears) agreed to adjourn the hearing scheduled for December 14, 1990. They also agreed that it should continue on January 28, 1990. Unfortunately, that date is not available to the Board for this matter. Accordingly, the Board directs the Registrar to schedule Board File No. 2715-89-G for hearing, in consultation with the parties, on a date which is available for the Board. Paragraphs 4 and 5 of the Board's December 10, 1990 decision herein will apply with the exception of the reference to the December 14, 1990 date. (We note that Sheet Metal has sought to intervene in the section 124 proceeding. The extent of its right to participate in that proceeding, if any, has not yet been determined. Accordingly, Sheet Metal should be consulted by the Registrar with respect to the scheduling of that matter as directed by the Board above).