Ontario Labour Relations Board

[1991] OLRB Rep. December 1404

0290-91-JD International Union of Elevator Constructors, Local 50, Applicant V. Otis Elevator Company Limited and Schindler Elevator Company Limited and Foundation Company of Canada and Plan Electric Company and International Brotherhood of Electrical Workers, Local 353, Respondents

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and C. A. Ballentine.

DECISION OF THE BOARD; December 9, 1991

1. In response to its November 5,1991 decision herein, the Board has received responses from only the respondent Foundation Company of Canada ("Foundation") and the respondent International Brotherhood of Electrical Workers, Local 353 (the "IBEW"). No party has requested a hearing and the Board is satisfied that it is appropriate to dispose of this matter on the basis of the materials and submissions already before it.

2. This is a jurisdictional dispute complaint brought before the Board under section 91 of the Labour Relations Act. The complaint bears an application date of April 25, 1991. In the brief it filed, the complainant described the work in dispute as being:

... the pulling and hook up of wiring from the elevator, escalator and moving walks controller to the terminals on the common lobby panel, which in this case is a computer. This work includes the laying of piping through which the wiring is pulled and the hook up of the wires at the eleva­tor, escalator and walkway controller and the hook up of the wires to the terminals on the com­puter.

The respondents Plan Electric Company ("Plan"), IBEW, and Foundation have described the work in dispute as including:

…….all the work connected with the design, supply and installation of computerized monitoring and control systems which work normally can be segregated into five phases:

a) The supply and installation of the computer hardware as well as the design and installation of the computer software;

b) The laying of conduit between the equipment to be monitored and con­trolled and the computer control room;

c) The pulling of wires and cables through the conduit;

d) The hook up of the wires and cables to the computer in the computer con­trol room; and

e) The hook up of the wires and cables to the equipment to be monitored and controlled.

To the extent that there is a difference or distinction between the two descriptions it seems more probable than not that the one suggested by Plan, Foundation and the IBEW is most accurate since the work was performed by members of the IBEW employed by Plan. In any event, the com­plainant has complained that the work in question ought to have been assigned to its members.

3. The complaint was processed in accordance with the Board's usual practice. This prac­tice requires all parties to prepare and file comprehensive briefs and documents in accordance with Board Practice Note #15. Also in accordance with the Board's practice, a Pre-Hearing Conference was scheduled for May 13, 1991. That was adjourned on agreement of the parties and was resche­duled for June 24, 1991. That date was also adjourned and the pre-hearing was rescheduled for August 12, 1991, a date selected in consultation with the parties and to which they all agreed.

4. The Pre-Hearing Memorandum prepared by the panel which pre-heard the matter indi­cates that prior to the pre-hearing conference the parties met to discuss the matter, and that when they appeared before the pre-hearing panel the complainant sought leave to withdraw the com­plaint. When that request was opposed by the IBEW, Plan and Foundation, who submitted that the complaint should be dismissed, the complainant took the position that the pre-hearing panel was without jurisdiction to dispose of that issue.

5. On the complainant's own brief, it appears that it learned in late October, 1990 that the work in dispute had been assigned to members of IBEW employed by Plan and that soon after­wards it delivered a grievance to Otis Elevator Company Limited ("Otis") complaining of that work assignment, even though the assignment had in fact been made by Plan (a company with which the complainant has no applicable collective agreement). That grievance was referred to the Board in early November, 1990 and then adjourned sine die so that the jurisdictional dispute com­plaint could be "initiated".

6. This complaint was not filed until April 25, 1991 - almost six months later. Although it was Plan which made the actual work assignment (for purposes of section 91 of the Act), the com­plainant seeks no order against Plan. Indeed, the only respondent against which the complainant seeks a specific remedy is Otis.

7. In its brief, the complainant also pleads that the work in dispute was originally assigned by Otis to its members. It then pleads that Foundation sub-contracted its work to Plan which "reassigned" it to members of the IBEW. Although the complainant does (briefly) describe the change in the plans for the work, it offers no explanation regarding how Foundation came to be involved. Nor does it offer any explanation for its assertion that Plan "reassigned" the work, since it is not apparent on the face of any of the materials before the Board that Plan ever made any assignment of the work in dispute to other than members of the IBEW.

8. In the result, we are left with a jurisdictional dispute complaint filed some six months after another proceeding was adjourned to permit it to be filed, in which on the materials before the Board, the complainant has never made a demand for the work in dispute, and in which the only specific remedy is against an employer which had, at best, only a remote connection with the work in dispute and which did not, in any event, make the assignment complained of.

9. On the other hand, we have the complainant's bald request for leave to withdraw its complaint.

10. Jurisdictional disputes are lengthy, labour intensive and expensive proceedings which are not to be initiated lightly. We can appreciate that a complainant may have good reason to ini­tiate a complaint and subsequently seek to withdraw it. Where the Board is satisfied with the explanation or reasons offered in that respect, leave to withdraw will generally be granted, with or without conditions (see section 91(12) of the Act).

11. In this case, the complainant has failed to offer any explanation or suggest any reason why its request should be granted. Perhaps it has no explanation or reason. In any case, we are unable to discern any reason to grant the complainant's request. Further, the complaint appears, on the basis of the material before the Board, to be ill- conceived and wit hout prima facie merit.

12. The complainant's request for leave to withdraw its complaint is therefore denied and the complaint is dismissed.