International Association of Bridge, Structural and Ornamental Ironworkers v. Electrical Power Systems Construction Association, 1991 CanLII 6149

[1991] OLRB Rep. December 1347

0796-91-JD; 0797-91-U; 1060-91-G International Association of Bridge, Structural and Ornamental Ironworkers; International Association of Bridge, Structural and Ornamental Ironworkers, Local 736, Complainants v. Electrical Power Systems Construction Association; Ontario Hydro; International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers; International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Respondents; International Association of Bridge, Structural and Ornamental Ironworkers, International Association of Bridge, Structural and Ornamental Ironworkers, Local 736, Applicants v. Electrical Power Systems Construction Association, Ontario Hydro, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members J. Lear and J. Kurchak.

APPEARANCES: S. B. D. Wahl and B. Doherty for the applicant; J. James Nyman and Hugh Laird for respondents, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, and Local 128; Harvey A. Beresford and Guy W. Giorno for respondents Electrical Power Systems Construction Association and Ontario Hydro.

DECISION OF THE BOARD; December 17, 1991

1. The International Association of Bridge, Structural and Ornamental Ironworkers, and Local 736 of that union ("Ironworkers" or "Local 736") have filed three related matters, which in essence all complain about a particular assignment of work, and change in assignment of work, made by the respondent Electrical Power Systems Construction Association ("EPSCA") and Ontario Hydro ("Hydro") to the other respondents, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, and Local 128 of the International ("Boilermakers" or "Local 128"). In its jurisdictional complaint, filed pursuant to section 91 of the Labour Relations Act, the Ironworkers complain both about the assignment made to the Boilermakers, and a change of assignment earlier made to the Ironworkers. They also rely upon the provisions of section 91(14) of the Act, asking that this Board enforce the order of the decision of the Plan for the Settlement of Jurisdictional Disputes in the construction industry. In a related section 89 complaint, the Ironworkers allege that the conduct of EPSCA and Hydro in changing one assignment and in making others constitutes breaches of sections 50, 51, 64, 66, 67, 70, and 91 of the Act. Finally, a section 124 application has been filed, alleging that the final assignment was improper and claiming the lost wages and benefits.

2. At the hearing into this matter, the Board made several preliminary rulings. This decision deals with those oral rulings. The Board ruled that the 124 application (Board File No.1060-91-G) would be deferred for the time being, until the other two proceedings were resolved, or the Board otherwise directed.

3. The Board then considered the objection of the respondents that the section 89 complaint failed to disclose a prima facie case, and that it ought therefore to be dismissed. The Board accepted the facts as pleaded by the complainants, subject to additional facts apparently not in dispute from the parties' submissions. These facts however were accepted as true and provable solely for the purposes of dealing with the preliminary objections.

4. Briefly, the dispute arose when certain work was assigned by Hydro, after a mark-up meeting attended by, amongst others, representatives of the Ironworkers and the Boilermakers. Disputed assignments were made with respect to certain work associated with condensers, and with respect to other work associated with reheaters. The condenser work in dispute was finished around March 15, 1991, and the reheaters work was finished around June 25, 1991. It is not necessary to further detail the work in dispute. Simply put, the Ironworkers complain of two matters. First, they allege that the assignment of particular work was made by Hydro to the Ironworkers but that Hydro later wrongly changed that final assignment. In response to the change, the Ironworkers complained to the Plan for the Settlement of Jurisdictional Disputes in the construction industry, to which the relevant parties had all stipulated, or were bound. As a result of that complaint and the forwarding of submissions to the Plan, the parties received a decision made by the Administrator of that Plan, which directed that Hydro reinstate or return to the original assignment, that in favour of the Ironworkers. Pursuant to the provisions of section 91(14) of the Act, the Ironworkers now ask that the Board enforce the decision of the Administrator.

5. Second, the Ironworkers allege that certain work, involving both the condensers and reheaters and including the work that was subject of the complaint about the change in final assignment referred to immediately above, ought to have been assigned by Hydro to the Ironworkers. In this respect, the Ironworkers rely upon the provisions of section 91(1) of the Act, and complain in a more typical fashion pursuant to the jurisdictional dispute complaint provisions.

6. The relevant provisions of the Act read as follows:

7. 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.

51.-(1) A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such person ceases to be a member of the employers' organization during the term of operation of the agreement, he shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions.

(2) When an employers' organization commences to bargain with a trade union or council of trade unions, it shall deliver to the trade union, or council of trade unions a list of the names of the employers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the employers' organization for whose employees the trade union or council of trade union is entitled to bargain and to make a collective agreement at that time, except an employer who, either by himself or through the employers' organization, has notified the trade union or council of trade unions in writing before the agreement was entered into that he will not be bound by a collective agreement between the employers' organization and the trade union or council of trade unions.

(3) A collective agreement between a certified council of trade unions and an employer is, subject to and for the purposes of this Act, binding upon each trade union that is a constituent union of such a council as if it had been made between each of such trade unions and the employer.

(4) A collective agreement between a council of trade unions, other than a certified council of trade unions, and an employer or an employers' organization is, subject to and for the purposes of this Act, binding upon the council of trade unions and each trade union that was a member of or affiliated with the council of trade unions at the time the agreement was entered into and on whose behalf the council of trade unions bargained with the employer or employers' organization as if it was made between each organization, and upon the employees in the bargaining unit defined in the agreement and, if any such trade union ceases to be a member of or affiliated with the council of trade unions during the term of operation of the agreement, it shall, for the remainder of the term of operation of the agreement, be deemed to be a party to the like agreement with the employer or employers' organization, as the case may be.

(5) Where a council of trade unions, other than a certified council of trade unions, commences to bargain with an employer or an employers' organization, it shall deliver to the employer or employers' organization a list of the names of the trade unions on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members or affiliates of the council of trade unions for whose employees the respective trade unions are entitled to bargain and to make a collective agreement at that time with the employer or the employers' organization, except a trade union that, either by itself or through the council of trade unions, has notified the employer or employer's organization in writing before the agreement is entered into that it will not be bound by a collective agreement between the council of trade unions and the employer or employers' organization.

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

67.-(1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargaining with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

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.

(2) The Board may in any direction made under subsection (1) provide that it shall be binding on the parties for other jobs then in existence or undertaken in the future in such geographic area as the Board considers advisable.

(8) Where a complaint is made under subsection (1) and the complainant alleges that a strike is imminent or is taking place by reason of the requirement as to the assignment of work or by reason of the assignment of work, the Board may, after consulting any employer, employers' organization, trade union or council of trade unions that in its opinion is concerned, make such interim order with respect to the assignment of the work as it in its discretion considers proper.

(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.

7. The section 89 complaint, other than its reliance upon the provisions of section 91(14) of the Act, can be disposed of quickly, as there is little merit to it. The complainant alleges that section 50 has been breached in that Hydro ignored the provisions of the applicable collective agreement. It asserts that section 51 was breached because that section deals with the binding nature of any collective agreement and Hydro did not conduct itself in a manner that recognized that. Section 64 is alleged to have been breached because Hydro's conduct interfered with the representational rights of the Ironworkers. Section 66, it was submitted, was breached because Hydro refused to employ Ironworkers to do the work in dispute. Section 70 was alleged to have been breached because Hydro's conduct constituted intimidation in the circumstances.

8. There is simply nothing in the facts as pleaded which constitutes any prima facie indication that these sections have been breached. Rather, the complaint appears to be a relatively transparent attempt to characterize a dispute over the correct assignment of particular work into an unfair labour practice. Such a work assignment dispute is precisely the purpose of the jurisdictional dispute proceedings. This point has been stated on numerous occasions by the Board, the most recent being Peter Kiewit Sons Co. Ltd. [1991] OLRB Rep. July 881. Reference can be made to that decision for a recital of the pertinent jurisprudence. For our purposes, it is sufficient to conclude that the facts do not disclose a prima facie case with respect to the sections pleaded (other than section 91(14)), and in any event, even if they had, the Board would exercise its discretion not to enquire further into those complaints, given that the root and basis of the complaint is a dispute with respect to a work assignment, and not truly an unfair labour practice. For these reasons, at the hearing the Board dismissed the complaint pursuant to section 89, except insofar as it relied upon the provisions of section 91(14) of the Act.

9. With respect to the complaints pursuant to sections 91(14) and 91(1) of the Act, the respondents argued that the Board has no jurisdiction to entertain them. First, the respondents argue that the complainants, having elected to seek an answer from the Plan, cannot at this stage turn to the Board for enforcement. The Collective Agreement (Article 6.3) gives the Ironworkers the right to elect whether to pursue or respond to a jurisdictional dispute at either the Ontario Labour Relations Board or the Plan. Where the Ironworkers elect to pursue or respond to the dispute at the Plan, as is the case here, the respondents assert that paragraph 6.3(b) of the Collective Agreement applies, which binds the parties to the Procedural Rules and Regulations of the Plan. Under those Rules, where a dispute cannot be settled by the parties on a local basis, it can be referred to the Plan. The Administrator under the Plan is to determine all questions of the original assignment of work and render decisions regarding them. Under Article 1 .2.c of the Plan, an appeal of the Administrator's determination of the original assignment may be made to an arbitrator. No party here has appealed to the arbitrator. Article 6.6 of the collective agreement indicates that where the Plan fails to render a decision within sixty days of the disputed assignment being referred to it, then the parties have recourse to this Board. The respondents assert that the complainants are not able to return to the Board at this stage for enforcement of the Administrator's decision. They must, at least, have referred the matter to arbitration and waited for sixty days after the matter was so referred before coming here.

10. Second, the respondents asserted that the enforcement procedure pursuant to section 91(14) is only available where the "decision" sought to be enforced is clear and unambiguous, and does not involve any interpretation of or dispute about the facts. Here, the respondents asserted the Administrator's decision is not sufficiently clear nor are the facts agreed. In such circumstances, the respondents asserted that the Board has no jurisdiction under section 91(14).

11. Third, the respondents asserted that the Board cannot, as a matter of jurisdiction, entertain the section 91(14) complaint without first deciding that there is no proper complaint pursuant to section 91(1). On the wording of section 91(14), the Board is not able to inquire into a complaint involving a work dispute where the collective agreement contains a provision requiring the reference of such a difference to a tribunal mutually selected by the parties to the agreement. If such a tribunal has been agreed to, the Board will dismiss a section 91(1) complaint. Under section 91(14), where such a tribunal has been agreed to, resort can however be made to the Board for enforcement of decisions of the tribunal. The complainants, it is submitted, cannot have it both ways. In the complaint filed under subsection 1 of section 91, the complainants are asserting that the parties have not mutually selected and agreed to another tribunal for resolving the work assignments. In contrast, in the complaint under subsection 14, the complainants are asserting that the parties have agreed to go to a mutually selected tribunal and not this Board. The Board is being asked only to enforce the decision of such tribunal. The complainants complain pursuant to both subsections 1 and 14. The respondents argued that they are thereby raising inconsistent and mutually exclusive complaints. The respondents submitted that the Board must first decide whether or not the parties have agreed, in their respective collective agreements, to refer such differences to an outside tribunal. If it so concludes, the Board has (on this argument) jurisdiction to entertain the section 91(14) complaint, but it must then dismiss the complaint with respect to subsection 1. The two cannot stand together. Thus, argued the respondents, as a matter of jurisdiction, the Board must decide whether it can hear the section 91(1) complaint before it can entertain the 91(14) complaint.

12. The Board declined to dismiss the complaint on these grounds. The Board was satisfied that the Administrator of the Plan had made a decision, specifically in her letter to the parties of June 21, 1991. That decision was clear, and it directed that Hydro revert to the original assignments it had made on or about February 12, 1991. This decision having been made, the Board was satisfied that it had jurisdiction under section 91(14). A decision had clearly been made by a tribunal, by the Administrator of the Plan, and the Board was being asked to enforce that decision. Any concerns about ambiguity in the decision, or dispute with respect to what the decision covered, are matters that can be dealt with as part of an adjudication into the merits of the section 91(14) complaint. It would render that subsection without practical substance if the Board only had jurisdiction where the party against which a decision had been made agreed with all the facts, or did not assert that the decision had some ambiguity. Where the facts as pleaded disclose that a decision has been made, arising out of a tribunal that falls within the ambit of section 91(14), then the Board has jurisdiction to entertain the complaint.

13. It does not appear from the Rules of the Plan, and the parties' submissions, that the decision of the Administrator could have been appealed to an arbitrator. But even if it could have~ no appeal has in fact been made. There is nothing in either the Plan or the collective agreement which would accordingly oust the Board's jurisdiction under section 91(14). The matter before us was referred to the Administrator and the Administrator made a decision. Only after that decision was reached and forwarded to the parties did the Ironworkers file the complaint, seeking enforcement of that decision. These circumstances distinguish the instant scenario from those dealt with in prior decisions of the Board: see, for example, EPSCA (unreported, Board File No. 0053-83-M, 1984).

14. The complainants do not at this stage press their section 91(1) complaint. After the section 91(14) complaint has been adjudicated upon, the Board can then deal with the complaint pursuant to section 91(1). It may be that the Board will conclude that it has no jurisdiction in that respect. But it is not in our view appropriate at this stage to conclude that either the complaint under subsection 1 or that under subsection 14 must be dismissed, merely because the complainants have filed both. The more appropriate procedure is to defer consideration of whether the Board has jurisdiction with respect to the work assignment complaint filed under subsection 1, until such time as the request for enforcement pursuant to subsection 14 has been finally resolved. The complainants' argument, that the dispute has two severable and distinct aspects might prevail; first, the complaint over the change in assignment, the subject of the Administrator's decision and the section 91(14) enforcement request, and second, the complaint about the assignment itself, the subject of the section 91(1) complaint. The complainants assert that only the change in assignment has been referred to the tribunal, and it does not encompass, in any event, all the work in dispute. They submit that such reference, involving a complaint about a change in a final assignment with respect to only part of the work in dispute in the section 91(1) complaint, ought not to in any way affect the right of the complainants to refer the assignment dispute itself to this Board. The section 91(1) complaint is a dispute over work which was assigned to the respondent unions. The section 91(14) complaint is based upon a claim that Hydro changed an assignment it had already made to the complainants. See, for example, Stoney Creek Mechanical Limited [1982] OLRB Rep. Dec. 1917, which discusses the distinction between these two types of complaint. It may be that the Board will agree to entertain the section 91(1) complaint based upon the complainant's assertion above, but we need not decide that issue now in order to have jurisdiction to consider the section 91(14) complaint, nor must the complainant elect to, in effect, withdraw one or the other of its complaints.

15. Therefore, the complaint under subsection 1 will be deferred until after the Board's decision has issued on the section 91(14) complaint. Pursuant to the discussion among the parties, and their agreements, the Board directs that by January 20, 1992, each party shall deliver to the other parties, and to the Board, a statement of all the material facts which they wish to lead in evidence or rely upon in any fashion in the proceedings~ which have not yet already been pleaded in their materials. The parties will not, except with leave of the Board, be allowed to lead evidence, or cross-examine other witnesses, with respect to material facts not so disclosed in the materials already filed or to be delivered and filed by January 20, 1992.

16. A Board Officer is hereby appointed to meet with and confer with the parties, in an effort to narrow the issues or otherwise settle these matters.

17. These matters will continue, before the instant panel, on May 12, May 13, and June 23,