[1991] OLRB Rep. March 354

2737-90-G International Union of Operating Engineers, Local 793, Applicant v. PCL Constructors Eastern Inc., Respondent v. Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America Local 527 and Operating Engineers Employers Bargaining Agency and The Metropolitan Toronto Demolition Contractors Inc., Interveners

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.

APPEARANCES: Bertha Greenstein and Len Budge for the applicant; Jim Thomson and Dwight Brown for the respondent; John Moszynski and Rick Weiss for Ontario Provincial District Council and Labourers' International Union of North America; Jim Thomson for Operating Engineers Employer Bargaining Agency; S. C. Bernardo for The Metropolitan Toronto Demolition Contractors Inc.

DECISION OF THE BOARD; March 4, 1991

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

2. The Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America Local 527 (the "Labourers") have sought to intervene in this proceeding on the basis that they are the bargaining agent of employees who may be affected by the application. The Labourers assert that the essence of the grievance herein is in the nature of a jurisdictional dispute which should proceed as such.

3. We also note that the Labourers intervention asserted that notice of this proceeding should be given to The Metropolitan Toronto Demolition Contractors Inc. and Delsan Demolition Limited ("Delsan"). The Registrar sent such notice by letter dated February 21, 1991.

4. At the hearing on February 27, 1991, counsel for the Labourers advised the Board that he had spoken to representatives of Delsan the previous day with respect to the matter and had been advised that Delsan had not received any notice from the Board with respect to this proceeding. Counsel suggested that, in the circumstances, it would be inappropriate for the Board to proceed in the absence of Delsan. In our view, it was not appropriate for the Labourers to do more than to bring this question to the attention of the Board. It is evident that Delsan, which has offices in Mississauga, did have actual notice of this proceeding and of the hearing on February 27, 1991 by at least February 26, 1991. Delsan could have retained one of the many lawyers who practice law in the Municipality of Metropolitan Toronto or the Regional Municipality of Peel, or sent some other representative to the hearing to make representations on its behalf with respect to any issue herein, including any question of notice. In that respect, we note that the Metropolitan Toronto Demolition Contractors Inc. was able to retain and instruct counsel, who did not request an adjournment, in similar circumstances.

5. We find it unnecessary to repeat the representations of the parties in detail. Suffice it to say, that the respondent and the interveners requested that the Board either dismiss the grievance herein outright or defer consideration of it pending the disposition of the jurisdictional dispute which they asserted the grievance raised. In addition, the Labourers submitted that the applicant herein should be required to file a jurisdictional dispute complaint, although they also undertook to file one. The applicant argued that the respondent and interveners had not established that its grievance raised the jurisdictional dispute, that all it sought was an enforcement of the collective agreement with the respondent, and that this was a case in which the Board should follow the lead of the decisions in Schindler Elevator Corporation, [1990] OLRB Rep. Oct. 1092 and Vic West Steel Limited, [1991] OLRB Rep. Jan. 111 and not adjourn or defer the section 124 proceeding herein unless and until it was at least determined that there is merit to the grievance.

6. Section 91(1) of the Labour Relations Act provides that:

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 Board observed in Schindler Elevator Corporation, supra, the Board has, in the interests of labour relations stability, adopted a broad approach to jurisdictional disputes such that, once satisfied that it has the jurisdiction to do so, the Board will generally hear a complaint concerning work assignment on its merits as such. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dispute. When a complaint under section 91 is filed, or is contemplated, with respect to the same assignment of work which is the subject of the grievance which has been referred to it, the Board is faced with deciding how the dispute is best resolved. The purpose of section 124 is to provide an expeditious mechanism for resolving grievances in an industry in which the nature of the work and the structure of labour relations often renders ineffectual the kind of arbitration provisions typically found in collective agreements. On the other hand, section 91 is specifically designed to be the primary means by which jurisdictional disputes are to be resolved. Accordingly, although there may be circumstances in which it is not appropriate to do so, the Board will often defer consideration of a grievance until a (bona fide) jurisdictional dispute relating to the same assignment work has been resolved. When faced with that kind of situation, the Board has generally concluded that a grievance can constitute a demand for the work in question (Eaman Riggs Limited, [1978] OLRB Rep. March 228, Napev Construction Ltd. [1979] OLRB Rep. Sept. 886, Pre-Con Company (A Division of St. Mary's Cement Limited), [1981] OLRB Rep. July 947, Ontario Hydro, [1982] OLRB Rep. March 428). A jurisdictional dispute complaint need not be dispositive of a grievance before the Board will defer consideration of the latter. Further, as the Board observed in its January 11, 1991 decision in Vic West Steel Limited, supra:

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 [is] 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.

7. In this case, the grievance referred to the Board alleges that the respondent "has engaged non-union personnel and non-union sub-contractor [sic] to perform work covered by the agreement" and requests that the respondent "immediately remove the non-union personnel and equipment, comply with and apply all terms and conditions of the Collective Agreement, monetary and non-monetary, and pay to the union in trust all wages and benefits owing as a result of the [respondent's] violation of the collective agreement". Counsel for the applicant conceded that the work which is the subject of the grievance (namely, the operation of shovels, rubber-tired back-hoes and skid steer loaders in the demolition of a commercial structure), was performed by members of the Labourers (it says by members of Labourers International Union of North America Local 506) and that the object of the grievance was to obtain the work for its own members.

8. The Board's decisions in Schindler Elevator Corporation, supra, and Vic West Steel, supra, indicate that the Board is concerned about the direction that the jurisdictional dispute process before it has taken. We agree with the comments made in those decisions in that respect. It should be evident that the Board intends to give careful scrutiny to request that a proceeding be deferred or adjourned pending the disposition of a jurisdictional dispute. A party making such a request must satisfy the Board both that the matters in issue in a proceeding do raise a jurisdictional dispute and that it is appropriate for them to be determined under section 91 of the Act using the Board's jurisdictional dispute procedure before a section 124 referral, for example, is allowed to proceed. This does not mean that it will be the Board's general practice to either defer or not to defer to the jurisdictional dispute process. Each case merits individual consideration in that respect.

9. In Vic West Steel, supra, what led the Board to proceed with the section 124 referral before the jurisdictional dispute complaint which had been filed was an assertion that the trade union which had delivered the grievance and referred it to the Board, and which grievance was accepted by all concerned to constitute a demand for the work in question, did not hold the bargaining rights upon which the grievance could be based. If, as the respondent employer asserted in that case, the applicant trade union held no relevant bargaining rights, its grievance would be dismissed, and, there being no other demand for the work in question, there would be no jurisdictional dispute within the meaning of section 91 of the Act. The Board went on to note that:

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.

10. Similarly, the Schindler Elevator Corporation, supra, decision must be read in the context of the circumstances set out therein. It is evident that the Board in that case was concerned about the conduct of the grieving trade union and whether there was any prima facie merit to the grievance in light of that conduct.

11. Consequently, while we agree with the decisions in Schindler Elevator Corporation, supra, and Vic West Steel, supra, we were not persuaded that it is appropriate to proceed with this application without first providing an opportunity to file a jurisdictional dispute complaint.

12. In this case, no one suggested that the applicant does not hold the bargaining rights upon which its grievance is based. Nor was there anything before the Board which raised the kinds of concerns raised in Schindler Elevator Corporation, supra. Further, the grievance herein is a prima facie demand for work which it was assigned by the respondent to and performed by members of the Labourers. It appeared to us that the nature of the issues raised by the grievance and the various interests involved are such that the issues raised by the grievance raise a jurisdictional dispute and are best dealt with under section 91 of the Act through the Board's jurisdictional dispute procedure.

13. We therefore ruled, orally, that consideration of the grievance herein should be deferred pending the filing and disposition of a jurisdictional dispute complaint. We did not find it appropriate to direct the applicant to file a jurisdictional dispute (assuming we have the power to so direct). However, we noted the Labourers undertaking to do so.

14. In the result, this proceeding was adjourned for twenty-one days (from February 27, 1991). If within that twenty-one days a jurisdictional dispute is filed with respect to the subject matter of the grievance herein, this matter will be adjourned sine die pending the disposition of that jurisdictional dispute. If no such jurisdictional dispute complaint is filed, the application herein will proceed.

15. As we noted in our ruling, we thought it premature to make any comment concerning the relationship, if any, between this grievance and the proceedings in Board File Nos. 1031-89-G or 1321-89-JD.