[1991] OLRB Rep. February 182
2350-89-JD; 1164-89-G Millwright District Council of Ontario on its own behalf and on behalf of Local 1151, Complainant v. International Brotherhood of Electrical Workers, Local 402, and E. S. Fox Limited, Respondents; International Brotherhood of Electrical Workers Local 402, Applicant v. E.S. Fox Limited, Respondent v. Millwrights District Council on its own behalf and on behalf of its Local 1151, Intervener
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: N. L. Jesin and G. Millard for Millwright District Council of Ontario on its own behalf and on behalf of Local 1151; W. Dubinsky and D. Edwards for International Brotherhood of Electrical Workers Local 402; W. J. McNaughton for E. S. Fox Limited.
DECISION OF THE BOARD; February 15, 1991
The Board has before it two related matters. 2350-89-JD is a jurisdictional dispute filed under section 91 of the Labour Relations Act by the Millwright District Council of Ontario on its own behalf and on behalf of its Local 1151 ("Millwrights").
File 1164-89-G is a section 124 grievance filed by the International Brotherhood of Electrical Workers, Local 402 ("IBEW") against E.S. Fox Limited ("E.S. Fox") alleging the following:
On the 1st, 2nd and 3rd days of July, 1989 you permitted persons who were not members of this Union to do the work of lining motors, installing of sheaves on the electrical motors, installing of belts and tensions and installing of motor bases on the project of Boise Cascade at Fort Frances. As we pointed out to you, this is a violation of Articles 200, 202 and 505 of the Collective Agreement, together with the understandings reached between the Union and you.
- The Millwrights intervened in the section 124 grievance stating:
"It is submitted that this matter represents a jurisdictional dispute and ought not to be determined through the grievance procedure".
- In its reply to the grievance E.S. Fox made the following submission:
The work in dispute was assigned to the Millwright & Machine Erectors, Local Union 1151 in accordance with the local practice, employer's preference and customer's preference.
- By letter dated November 23, 1989 counsel for the IBEW advised counsel for the Millwrights with copy to the Registrar of the Ontario Labour Relations Board as follows:
Pursuant to the information supplied to us by Frank Reilly, Labour Relations Officer, we are prepared to withhold any further insistence that this matter proceed forthwith to permit you to file a jurisdictional disputes application.
- These matters were scheduled for hearing by the Board, differently constituted, by decision dated March 27, 1990. Paragraph 1 of that decision stated:
After considering the representations of the parties, the Board adjourns the pre-hearing conference. This complaint under section 91 will be listed for hearing together with the referral under section 124 in Board File No. 1164-89-G, so that the Board may consider the objections to the jurisdiction of the Board in this complaint and the effect of such objections to the referral in Board File No. 1164-89-G.
The IBEW, in paragraph 2 of Schedule A of its reply to the jurisdictional dispute application dated January 7, 1990, stated: "At the meeting (mark-up meeting) the drawings of the project were reviewed and the work in dispute was assigned to the millwrights."
At the hearing counsel for the IBEW took the position that the Board is deprived of jurisdiction to hear the jurisdictional dispute pursuant to section 91(14) of the Act, Article 509 of the IBEW Agreement and Article 14(d) of the Millwright Agreement. Counsel submits the section 124 grievance should proceed on its merits and that the Millwrights have no standing to intervene in the section 124 grievance filed by IBEW against E.S. Fox.
Counsel for E.S. Fox submits that the work was done by members of another trade union and pursuant to Article 509 of the IBEW Agreement such a dispute "...shall not be the subject of a grievance...". E.S. Fox contends that pursuant to section 91(14) the Board does not have jurisdiction to hear the section 91 complaint and therefore both matters should be dismissed.
Counsel for the Millwrights took the position that the Board does not have jurisdiction to hear the section 124 grievance. Counsel submits the IBEW agreement contains a clause providing that a grievance over a work assignment dispute cannot be heard as a grievance and therefore the section 124 grievance should be dismissed.
E.S. Fox is bound to collective agreements with the IBEW and the Millwrights. Article 509 of the IBEW agreement provides as follows:
509 JURISDICTIONAL DISPUTES (STIPULATED)
When a work claim dispute arises between the Union which is a party to this agreement and any other Union, person or organization which cannot be settled to the satisfaction of all parties concerned, such a dispute shall not be the subject of a grievance under this agreement, or the OLRA, but shall, without any stoppage of work or interference with the progress of the job, be processed in accordance with the Plan for Settlement of Jurisdictional Disputes in the Construction Industry or to any similarly structured board, which may be established if the said plan is not available to the parties.
In the meantime, work will continue as assigned by the employer until otherwise changed by decision of the Joint Board or the Ontario Labour Relations Board.
[emphasis added]
- Article 14 of the Millwrights Agreement provides:
(a) The Party of the First Part agrees to recognize the jurisdictional claims of the United Brotherhood of Carpenters and Joiners of America as contained in Schedule "C" attached to and forming an integral part of this Agreement.
(b) If a Jurisdictional Dispute arises on any job between the Party of the Second Part and any other Building Trades Union that is affiliated with the AFL-CIO Building and Construction Trades Department, same shall be settled by submitting the dispute immediately to the Impartial Jurisdictional Disputes Board for a decision. The decision rendered by the Impartial Jurisdictional Disputes Board shall be recognized and immediately implemented and such decision shall be binding on all Parties to the dispute.
(c) Both parties agree to recognize and abide by all agreements covering work jurisdiction as made and entered into by and between the International body of the United Brotherhood of Carpenters and Joiners of America, and any other International Union affiliated with the AFL-CIO.
(d) Any jurisdictional dispute between the Union and any other Building and Construction Trades Union, that involves any work undertaken by an employer will in no way interfere with the progress of the work. The Parties agree to abide by a decision of the Impartial Jurisdictional Disputes Board for that project.
(e) The Employer shall be kept fully advised of all jurisdictional disputes the Council may have with his sub-Contractor on the job.
(f) On request of either party to this Agreement, a Pre-Job Conference may be held to view the work to be performed and ascertain work assignments to be made in connection therewith. (SEE LETTER OF INTENT WITH RESPECT TO THIS ARTICLE LISTED IN SCHEDULE "F" OF THIS AGREEMENT).
Letter of Intent states as follows:
Article Fourteen - Jurisdictional Panel
If a Jurisdictional Panel is established for the Province of Ontario, prior to the termination of this Agreement, the Association of Millwrighting Contractors of Ontario Inc. and the Millwright District Council of Ontario, hereby agree to meet for the purpose of investigating the implementing of this Disputes Panel as part of this Collective Agreement.
We are satisfied on the basis of the submissions of the parties and the documentation filed with the Board that the events that gave rise to the grievance are the same events that are subject of the jurisdictional dispute. The very wording of Article 509 contemplates precisely the circumstances that brought the parties to the Board. The work is assigned to and performed by persons of one trade union rather than persons in another trade union. The trade union whose members did not get the work, namely the IBEW filed a grievance. The language in Article 509 is clear, this type of work dispute "shall not be the subject of a grievance under this agreement, or the OLRA, but shall without any stoppage of work or interference with the progress of the job, be processed in accordance with the Plan for Settlement of Jurisdictional Disputes in the Construction Industry or to any similarly structured board, which may be established if the said plan is not available to the parties."
Having regard to the above the section 124 grievance is hereby dismissed.
This brings us to the question of the Board's jurisdiction under section 91(14). Section 91(14) of the Act provides:
(14) The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and such trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of such tribunal.
The Board has stated in a number of Board decisions that the Board does not have jurisdiction when the parties have provisions in their collective agreements requiring work assignment disputes to be referred to a mutually selected tribunal. E.S. Fox, the Millwrights and the IBEW are bound by collective agreement provisions that require the parties to refer any work claim disputes to the Plan for Settlement of Jurisdictional Disputes in the Construction Industry.
Having regard to the above the Board finds it does not have jurisdiction under section 91(14) to hear this complaint and it is therefore dismissed.
At the outset the Millwrights raised an issue with respect to Board Member Kobryn sitting on a matter involving the Millwrights on the basis of reasonable apprehension of bias due to the fact that he has been subpoenaed by the Ironworkers union to testify in another proceeding involving the Millwrights. At the time of the hearing and as of the issuance of this decision, Board Member Kobryn has not been called to testify. This issue is premature and we do not intend to deal with it.