Ontario Labour Relations Board

[1991] OLRB Rep. May 601

3258-90-G Labourers' International Union of North America Ontario Provincial District Council, on behalf of its affiliated Local Unions 183, 247, 491, 493, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, Applicant v. Consamar Inc., Respondent v. Pipeline Contractors Association of Canada, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and J. Redshaw.

APPEARANCES: S. B. D. Wahl, T. Connolly for the applicant; M. D. Sweany for the respondent; N. L. Jesin, B. L. Brown for the intervener.

DECISION OF THE BOARD; May 21, 1991

1. This is a referral to the Board of a grievance in the construction industry, pursuant to section 124 of the Labour Relations Act.

2. By letter to the respondent dated March 6, 1991, the applicant has grieved as follows:

Dear Sir:

Re: Labourers' Mainline Pipeline Agreement for Canada Between the Pipeline Contractors Association of Canada and Labourers' International Union of North America effective from 1st of May, 1989 to 30 April, 1991 (the "Collective Agreement"), binding on Consamar Inc.

(the "Employer")

The Labourers' International Union of North America, Ontario Provincial District Council, on its own behalf and on behalf of its Local Unions and its unemployed members (the "Union"), hereby grieves that from on or about February 11th. 1991 and continuing, the Employer has violated the Collective Agreement. Without limiting the generality of the foregoing, in particular Articles I, II, III, IV and V thereof, by failing or refusing to employ only members in good standing of the Union for all work covered by the Collective Agreement specifically the general labourer's work of assisting the fuel truck driver or drivers at its Northern Ontario Pipeline job sites. At all material times there have been and continue to be unemployed members of the Union who are qualified, ready, willing and available to perform said work for the Employer.

Remedy required:

1. A declaration that the Collective Agreement is binding upon and has been violated by the Employer as hereinbefore set out.

2. An Order that the Employer cease and desist from violating the Collective Agreement.

3. An Order that the Employer employ only members in good standing of the Union for all work covered by the Collective Agreement in accordance with its terms.

4. An Order for damages against the Employer in an amount equal to all wages, benefits, contributions, deductions and remittances that would have been paid or payable to the Union and/or its unemployed members or affiliated organizations, with interest.

5. Such further and other relief as may be appropriate in the circumstances.

This grievance is being referred to Arbitration before the Ontario Labour Relations Board pursuant to Section 124 of the Act.

This grievance was referred to the Board on March 8, 1991.

3. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America on behalf of Local 91, 141, 230, 879, 880, 990, 989 ("the Teamsters") has filed an intervention in this proceeding. In it, the Teamsters assert that the grievance is a demand for work which has been assigned to one of its members, and that it raises what is, in essence, a jurisdictional dispute and is, as such, inarbitrable before the Board. In the alternative, the Teamsters submits in its intervention that the grievance ought to be deferred pending the disposition of the jurisdictional dispute. In addition, in a letter dated April 22, 1991, the Teamsters submits that the applicant "is not a party to any collective agreement relevant to these proceedings and therefore, this application ought to be dismissed", and alternatively, that this matter should be adjourned until the Labourers' International Union of North America has been given proper notice of it.

4. At the hearing on April 23, 1991, with respect to this matter, the Board was advised that the applicant's grievance alleges a violation of the Laborers (sic] Mainline Pipeline Agreement for Canada (the "Pipeline Agreement") between the Pipe Line Contractors Association of Canada and the Laborers [sic] International Union of North America (which we take to be the American spelling of the Labourers International Union of North America). The grievance concerns the assignment of work as a "swamper" on a fuel truck to a member of the Teamsters. The applicant alleges that the swamper job for the first fuel truck on the job site in question was assigned to a labourer at a pre-job mark-up meeting on December 3, 1990. Subsequently, when a second fuel truck came to be utilized on the job site, the swamper job associated with it was assigned to a teamster. The applicant alleges that this second assignment was an improper "change" to the December 3, 1990 assignment. In argument, the applicant asserted that the respondent did not have the right to make such a "change", and that by doing so, it violated the Recognition and Security clause of the Pipeline Agreement. We note that the grievance also alleges violations of the Coverage and Definitions, Scope of Work, Notification, Pre-job Conference and Enforcement, and Hiring Procedure clauses.)

5. The respondent employer confirmed that the swamper job assignment came up at a December 3, 1990 meeting and that the swamper job on the first fuel truck at the job site was assigned to a labourer. However, the respondent asserted that that assignment was made because it had been advised by representatives of the Labourers Union that there was a decision of this Board which supported its claim to the work. The respondent asserted that the "Labourers Union" representatives said that they would provide evidence of this, and evidence that the "Labourers Union" had not accepted a Saskatechewan jurisdictional dispute decision in which swamper work was awarded to members of the Teamsters, but that they failed to do so. In the meantime, the respondent said it had received written submissions from the Teamsters which prompted it to assign the swamper job on the second fuel truck to a teamster. The respondent considered this to be a "new" assignment.

6. At the hearing, the Teamsters did not pursue an argument that the proceeding should be adjourned in order to have the Labourers International Union of North America (the "International") provided with notice (possibly because a representative of the International appeared with counsel and others on behalf of the applicant). It did however, maintain its objection to the applicant's ability to bring the grievance and referred the Board to Ontario Hydro [1986] OLRB Rep. Aug. 1137 (the "Franks decision") in that regard. The respondent and the intervener Pipe Line Contractors Association of Canada supported the Teamsters position in that respect. In addition, the Teamsters disagreed with the applicant's characterization of the second swamper job assignment as "change" and argued that the grievance is really a jurisdictional dispute in any event.

7. In the alternative, and while conceding that the Board's practice is to merely defer grievances which are fundamentally jurisdictional disputes pending the disposition of the jurisdictional dispute through the process established therefore, the Teamsters urged the Board to adopt the approach it asserts as prevalent in other North American jurisdictions; that is, to dismiss the grievance herein as being inarbitrable because it is a jurisdictional dispute.

8. In the further alternative, the Teamsters referred to the Board to what it asserts is an agreement between the Labourers International Union of North America and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. It produced a document on the apparent joint letterhead of those two trade unions dated March 19, 1991 which is signed by the General President of each and which reads as follows:

TO ALL REGIONAL OFFICES, CONFERENCES,

DISTRICT COUNCILS AND LOCALS UNIONS

IN THE UNITED STATES AND CANADA

Dear Brothers and Sisters:

Various discussions recently have been held between the officers and staff of the Laborers' [sic] International Union of North America and the International Brotherhood of Teamsters regarding both problems which exist and progress which has been made between our two organizations.

This communication will serve as the notice to all affiliates of both International Unions to reestablish a productive working relationship that historically and traditionally has been recognized. This close working relationship between our memberships can only he beneficial to our mutual, common interest.

Furthermore, this communication specifically reaffirms the Memorandum of Understanding between the Laborers' [sic] and the Teamsters, dated April 22, 1947, as well as the 1970 Memorandum of Understanding, in addition to the September 17, 1980 Committee Understanding. These documents indicate the long cooperative history between the Laborers' [sic] and the Teamsters.

It is further directed that all affiliates are to refrain from referring jurisdictional disputes to the National Labor [sic] Relations Board or Canadian Provincial Labour Relations Boards for resolution. All affiliates will use every possible means to persuade employers not to file jurisdictional disputes with government boards in the United States and Canada.

All jurisdictional disputes must be discussed and hopefully resolved on a local level. Only after local attempts for resolution have failed will such disputes be filed with the International Unions. At that point, representatives from the various Conferences and Regional Offices will be assigned to meet in order to resolve any jurisdictional differences. Failing settlement, the dispute will then be referred to the full jurisdictional committee for resolution.

This, therefore, will serve as a means to develop the cooperation and needed communication between all affiliates.

9. The Teamsters argued that the applicant ought to have followed the procedure established by the agreement between the two Internationals, and that the applicant should not be permitted to proceed with the grievance at least until that procedure, which the Teamsters said it had instituted, had been exhausted.

10. As yet a further alternative, the Teamsters suggested it would be appropriate to follow the approach adopted in Schindler Elevator Corporation [1990] OLRB Rep. Oct. 1092 in this matter.

11. The respondent and the intervener Pipeline Contractors Association of Canada adopted these submissions of the Teamsters as well.

12. Finally, the Teamsters indicated that "if forced to do so", it would itself file a jurisdictional dispute complaint with the Board. It also confirmed that it had advised the respondent that it might itself file a grievance if the second swamper assignment was changed.

13. In response, the applicant referred the Board to an accreditation decision in Pipe Line Contractors Association of Canada and Labourers International Union of North America, Ontario Provincial District Council; the Utility Contractors Association of Ontario, Intervener in Board File No. 1051-71-R (Aug. 10, 1972, unreported). It argued that the accreditation order made in that decision made this case distinguishable from the Franks decision. The applicant also referred to section 147(3) of the Act in support of its claim to the right to bring the grievance herein. In response to the other arguments, the applicant referred to Ontario Hydro [1982] OLRB Rep. Mar. 428 and Ontario Hydro [1988] OLRB Rep. Dec. 1303 (application for judicial review dismissed Nov. 15, 1990, reported at [1990] OLRB Rep. Nov. 1204) in support of its argument that the Board should proceed with the grievance arbitration notwithstanding any jurisdictional dispute aspect to it. The applicant denied having any knowledge of the Teamsters instituting proceedings under the agreement between the two Internationals and pointed out that that agreement was signed after this grievance was delivered and referred to the Board (although the Teamsters did allege that that agreement had been entered into on January 31, 1991 even though it was not executed until March 19, 1991). The applicant also submitted that the Board should, at the very least, proceed with the grievance to the extent of determining whether the respondent was able to "change" the swamper work assignment, an approach it argued would be consistent with Schindler Elevator Corporation, supra.

14. It appears therefore that, in their final alternative positions at least, the parties agree that the Schindler Elevator Corporation, supra approach is applicable to these circumstances. However, the fundamental question is whether the applicant can properly bring this grievance at all.

15. Section 124(1) of the Labour Relations Act provides that:

124.-(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

Sections 137(1)(a), (c) and (e), and 147(3) provide that:

137.-(1) In this section and in sections 135 and 138 to 151,

(a) "affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency.

(c) "employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union;

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions representing terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(3).

147.-(3) Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by provincial agreement shall be considered to be a party for the purpose of section 124.

16. In effect, the applicant's argument is that because it is an affiliated bargaining agent bound by a provincial agreement in the industrial, commercial and institutional ("ICI") sector of the construction industry, it is properly considered to be a party for section 124 purposes with respect to other collective agreements by which it is bound as well.

17. In our view, section 147(3) does not assist the applicant. It is clear that sections 137 to 151 apply to the province wide bargaining scheme established by the Act for the ICI sector of the construction industry in Ontario. Section 147 stipulates only that an employee bargaining agency, as defined in section 137(1)(c), or an affiliated bargaining agent, as defined in section 137(1)(a), which is bound by provincial agreement as defined by section 137(1)(e) (that is, one with respect to the ICI sector of the construction industry in Ontario) is a "party" within the meaning and for purposes of grievances under the ICI provincial agreement it is bound by which are referred to the Board pursuant to section 124 of the Act. It does not apply to collective agreements other than provincial agreements within the meaning of section 137(1)(e).

18. Nor does the accreditation decision referred to by the applicant assist it. Notwithstanding that at paragraph 2 of that decision, the Labourers' International Union of North America is referred to as the respondent, it is evident that the respondent was the Labourers' International Union of North America, Ontario Provincial District Council, which is also the applicant herein. At paragraph 7 of that accreditation decision, the Board distinguished between the International and the Labourers' International Union of North America, Ontario Provincial District Council (the "District Council") when it observed that:

The Labourers' International Union of North America has assigned "pipeline jurisdiction" in the Province of Ontario to various locals. These locals have formed the Ontario Provincial District Council which is the respondent in this application.

19. We note also that pursuant to the designation issued by the Minister on September 30,

1983, the International and the District Council are the employee bargaining agency designated to represent in bargaining all construction labourers, including masons, or bricklayers tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work, who are represented by their affiliated bargaining agents in the ICI sector of the construction industry in Ontario. Each of the International and the District Council are individually identified as also being affiliated bargaining agents of that designated employee bargaining agency.

20. It is clear that the International and the District Council are separate and distinct entities, both of which are trade unions within the meaning of the Labour Relations Act.

21. In its result, the Board's accreditation decision issued a certificate of accreditation to the Pipe Line Contractors Association of Canada with respect to all employees for whom the District Council, not the International, held bargaining rights in the pipeline sector of the construction industry in the Province of Ontario. Bargaining rights held by the International were not in issue in that proceeding. Nor was the International a party to that proceeding.

22. At page one of the Pipeline Agreement, it is specified that it is an agreement:

BY AND BETWEEN:

PIPE LINE CONTRACTORS ASSOCIATION OF CANADA (hereinafter referred to as the "Association") on behalf of those employers of employees who have appointed or who may appoint the Association as agent for collective bargaining, those employers on whose behalf the Association is accredited or registered as collective bargaining agent and such other employers of employees who may execute an acceptance of the terms and provisions of this Agreement as identified from time to time in Schedule A attached hereto (hereinafter referred to as the "Employer").

AND:

LABORERS [sic] INTERNATIONAL UNION OF NORTH AMERICA (hereinafter referred to as the "Union") and its Local Unions having pipeline jurisdiction in Canada as identified in Schedule B attached hereto (hereinafter referred to as the "Local Union")

Schedule B to the agreement is set out at page 35 of the Pipeline Agreement document as follows:

SCHEDULE B

LABORERS INTERNATIONAL UNION OF

NORTH AMERICA

ANGELO FOSCO, General President

905 - 16th St. NW., Washington, D.C., 20006

(202) 737-8320

ARTHUR E. COlA, General Secretary-Treasurer

905 - 16th St. NW., Washington, D.C., 20006

(202) 737-8320

Refer all Job Notifications, Pre-job Conference requests and Local Union jurisdiction inquiries to the following International Representatives:

Ontario, Manitoba, N.W.T. (District of Keewatin):

UGO ROSSINI, 4th Vice-President and Manager,

Toronto Sub-Regional Office

105 - 1210 Sheppard Avenue East

Willowdale, Ontario, M2K 2S5

(416) 496-1110 Fax: (416) 496-8272

Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland, Labrador and Baffin Island:

NELL SCIPIONI, Manager

Eastern Canada Sub-Regional Office

101-1177 Belanger Ave.,

Ottawa, Ont., K1H 8N7

(613) 738-3184 Fax: (613)

British Columbia, Alberta, Saskatchewan, Yukon Territory, and N.W.T. (District of Mackenzie)

W E HART, Manager

Vancouver Sub-Regional Office

516-1200 W. 73rd Ave.

Vancouver, B.C., V6P 6G5

(604) 261-0241 Fax: (614) 261-0633

1989/91

There is no reference in Schedule B to any "Local Union" of the Labourers' International Union of North America or to the District Council.

23. Further, although Schedule A to the Pipeline Agreement lists the employers bound by it and suggests that the "Ontario Employers" listed are bound by "Accreditation", we are unable to discern a connection between that and the accreditation order issued with respect to the District Council on August 10, 1972 as aforesaid.

24. In the result, there is no reference to the District Council, the applicant herein, in the

Pipeline Agreement. This agreement is one by and between the International and the Pipe Line

Contractors Association of Canada.

25. Even if the applicant is nevertheless somehow bound by the Pipeline Agreement (which we seriously doubt, given that no "Local Unions" which might constitute it are named in it), we find the Franks decision to be applicable. In that case, the Board correctly distinguished between a trade union which is a party to a collective agreement and a trade union which is bound by collective agreement, and concluded that a trade union which is not a party cannot bring and refer to the Board under section 124 a grievance under a collective agreement which is not a provincial agreement. At paragraphs 3 and 6 to 8 the Board explained that:

26. In a previous decision, The International Brotherhood of Teamsters and the Electrical Power Systems Construction Association [1976] OLRB Rep. Dec. 825, this Board found that the International Brotherhood of Teamsters, a member of the Allied Construction Trades Council was not entitled to bring a grievance under the collective agreement between the Allied Counsel and EPSCA because on the wording of the agreement that trade union was not a party to the collective agreement and since it was not a party it did not have status to bring a grievance or a section 124 application before the Board. At the time that case was decided, section 124 or 112(a)(1) as it was at that time read as follows:

Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 37, either party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation. application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

[emphasis added]

Subsequently, section 112(a)(1) was amended to changing the words "either party" in the third line to a "a party" and the section continued in that form to the present day. It is to be noted that the amendment to the Act changing the expression "either party" to the expression "a party" would not change the outcome of the previous EPSCA decision referred to since the crux of the finding in that case is that the Teamsters were not a party to the collective agreement.

6. At the root of the problem in the present case is the distinction between being bound by a collective agreement versus being a party to the collective agreement. From its earliest form the Labour Relations Act has recognized that there is a distinction between a party to an agreement and the matter of being binding. See, for example, section 50 of the Act which reads as follows:

A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

There the employer and trade union are parties whereas the employees are bound by the collective agreement.

7. The matter becomes more complex particularly in the construction industry, where the agreements are multi-employer agreements and the union side is frequently a council or certified council of trade union. Thus, for instance, in the provincial bargaining provisions of the Labour Relations Act by section 147(3) the problem as to status as a party to a provincial agreement is specifically dealt with:

Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the purpose of section 124.

8. In the present case it is clear that the parties to the agreement specifically limited who were parties to that collective agreement as distinct from who are bound by the collective agreement, and having structured their affairs with such a distinction in mind it would not be appropriate for this Board to interfere with that distinction. The fact that the applicant local may be bound by the collective agreement does not in and of itself make it a party to the collective agreement since that agreement clearly limits the parties to the agreement to EPSCA and the Allied Council. (See also Ainsworth Electric Limited [1977] OLRB Rep. July 399).

We note that in the Franks decision the Board specifically considered the effect of section 147(3) outside of the provincial bargaining scheme and found it inapplicable.

26. We are satisfied that the applicant Labourers' International Union of North America, Ontario Provincial District Council is not a party to the Pipeline Agreement and therefore has no status to either bring the grievance herein or refer it to the Board. The grievance is therefore dismissed.

27. In the circumstances, we find it unnecessary to deal with or comment upon the other arguments made by the parties.