Ontario Sheet Metal Workers' Conference v. J.R. Mechanical Inc., 1991 CanLII 6165

Ontario Sheet Metal Workers' Conference and Sheet Metal Workers' International Association, Local 30 v. J.R. Mechanical Inc.

[1991] OLRB Rep. August 999

2669-90-G; 3121-90-JD Ontario Sheet Metal Workers' Conference and Sheet Metal Workers' International Association, Local 30, Applicants v. J.R. Mechani­cal Inc., Respondent; J.R. Mechanical Inc., Complainant v. Sheet Metal Workers' International Association, Local 30 -and- United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Respondents v. Ontario Sheet Metal and Air Handling Group, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Trim and H. Kobryn.

APPEARANCES: David Daniels and J. Romano for the complainant J.R. Mechanical Inc.; A. M. Minsky, G. Ward and J. Moffat for the respondent Sheet Metal Workers' International Associa­tion, Local 30; A. Ahee, B. Scott, David Clark and J. Boyle for the respondent United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46; Fred Heerema and W. N. Gardner for the intervener.

DECISION OF THE BOARD; August 2, 1991

1Board File 3121-90-JD is a jurisdictional dispute complaint filed pursuant to section 91 of the Labour Relations Act ("the Act"). Board File 2669-90-G is a referral of a grievance to the Board for arbitration pursuant to section 124 of the Act. It is not disputed that the jurisdictional dispute complaint was filed by the complainant employer J.R. Mechanical Inc. ("the employer") as a defence to the grievance. By decision of a different panel of the Board dated March 1, 1991, the referral of the grievance was adjourned "pending the resolution of the jurisdictional dispute".

2This panel of the Board conducted a pre-hearing conference in respect of the jurisdic­tional dispute complaint on April 15, 1991. An interim report of that pre-hearing conference was written and provided to the parties. The pre-hearing conference was scheduled to continue on June 6, 1991.

3On June 6, 1991 discussions amongst the parties took place throughout the day. Towards the end of the day scheduled the panel was advised that a memorandum of settlement had been entered into between the employer and the Ontario Sheet Metal Workers' Conference ("the Conference") and Sheet Metal Workers' International Association, Local 30 ("Local 30"). As a result of that memorandum, the Conference and Local 30 sought leave of the Board to withdraw the referral of the grievance in Board File 2669-90-G. The employer sought leave of the Board to withdraw the jurisdictional dispute complaint filed in Board File 3121-90-JD.

4The United Association of Journeyman and Apprentices of the Plumbing and Pipefit­ting Industry of the United States and Canada, Local 46 ("Local 46") was not a signatory to the memorandum of settlement. Counsel for Local 46 urged this panel not to permit the employer to withdraw the jurisdictional dispute complaint which it had filed. Counsel for Local 46 strenuously objected to a termination of the jurisdictional dispute complaint proceedings and argued that the complaint should proceed to an ultimate adjudication upon its merits. Counsel made some prelimi­nary submissions asserting that the Conference and Local 30 were "sector shopping" and/or "Board area" shopping and indicated that if the complaint was permitted to be withdrawn Local 46 would seek costs.

5Given the lateness of the hour and the desire of Local 30 and the Conference to for­mally respond to Local 46's position it was agreed that the parties would each be provided with an opportunity to make written submissions to the Board as to whether the Board should grant leave to withdraw the jurisdictional dispute complaint. The parties agreed that this panel of the Board should consider those submissions and render a decision in this matter.

6The Board subsequently received the written submissions of the parties.

7In its submissions to the Board Local 46 continued to assert its position that the Board should refuse to grant leave to the complainant employer to withdraw its complaint. Local 46 sub­mitted that the Board had the jurisdiction and should exercise its discretion to compel the com­plainant employer to proceed with the adjudication and ultimate determination of the jurisdic­tional dispute complaint. In the alternative Local 46 submitted that the Board should dismiss the complaint and in so doing note Local 46's continued claim to the work in dispute and order costs payable by Local 30 and the Conference to Local 46.

8Local 30 and the Conference in their written submissions did "not object to the Board's continuing to process the instant jurisdictional dispute complaint on condition that Local 46 be required to take carriage of same..." Such procedure "appropriately accommodates the employer's desire to withdraw the complaint while, at the same time, permitting the complaint to proceed as Local 46 requests." Local 30 and the Conference adopted this position "in view of the need to resolve the ongoing jurisdictional disputes between the Conference and its Local Unions with Local unions of the Plumbers." Reference was made to a number of other jurisdictional dispute complaints involving similar work which have been filed with the Board. Local 30 and the Confer­ence also made submissions regarding Local 46's claim for costs.

9The Intervener, Ontario Sheet Metal and Air Handling Group also referred to a num­ber of jurisdictional dispute complaints which have been filed concerning the disputed work and submitted that "In view of the need for an early resolution to the complaints which have been filed to date and others which may be forthcoming, the Intervener concurs with the proposal made [by Local 30] for the continuance of this proceeding.

10The employer reiterated its request for leave of the Board to withdraw and took no position otherwise in respect of the submissions of either respondents.

11Although Local 46 in its submissions relied upon the decision of the Board in Steen Contractors Limited, [1986] OLRB Rep. May 677. We do not view that decision as applicable to the facts before us. The facts in Steen Contractors Limited were extraordinary and readily distin­guishable from those before us. Unlike the situation in Steen Contractors Limited no interim order has been made pursuant to section 91(8) in the jurisdictional dispute complaint before us. In addi­tion, the work in dispute in Steen Contractors Limited had been and remained "a source of conflict between the two trade unions in the Oshawa area". Unlike the present situation, in Steen Contrac­tors Limited that source of conflict was not a "general" source of conflict between two trade unions about competing claims over certain types of work, but concerned ongoing work which had been the subject of an earlier jurisdictional dispute complaint which had not been adjudicated for rea­sons referred to in the decision. The work in dispute in Steen Contracting Limited was ongoing work which had been let by the same general contractor, was being done for the same client on the same property and involved the same two unions as the earlier jurisdictional dispute complaint. That is not the case before us.

12We view the decision of the Board in E. S. Fox Limited, [1990] OLRB Rep. May 504 to be more closely analogous to the case before us. There the Board exercised its discretion to not inquire further into a jurisdictional dispute complaint after the withdrawal of a grievance which had led to the filing of the complaint. The Board stated inter alia at paragraph 18:

In this complaint, the demand that the assignment that the work described in paragraph 4 above be changed came in the form of the grievance which has since been withdrawn. Accordingly, there is no longer any trade union which is requiring that that work assignment be changed.

13In this instance Local 46 asserts that notwithstanding the withdrawal of the grievance by Local 30 and the Conference a claim or demand for the work in dispute remains outstanding. In its reply to the complaint Local 46 seeks inter alia "a declaration that the work in dispute was improp­erly assigned" and a "declaration that the work in dispute is to be assigned in the future to the United Association on all projects of J.R. Mechanical". Local 46 asserts that its reply constitutes a demand for the work. As its claim remains outstanding the jurisdictional dispute complaint pro­ceedings ought not to be terminated.

14For purposes of this decision we are prepared to accept that the reply of Local 46 consti­tutes a demand for the work. We agree that the Board has the jurisdiction to inquire into this com­pliant in these circumstances. The exercise of our jurisdiction however is discretionary. In our view, although we have the jurisdiction to do so, this is not an appropriate case for the Board to exercise its discretion and inquire further into this complaint.

15We agree with and adopt the rationale of the Board in E. S. Fox Limited, supra, partic­ularly the Board's comments in paragraphs 13 to 20 of that decision. The conflict which gave rise to the filing of this jurisdictional complaint was the grievance. The parties to that grievance have resolved their conflict. Local 46 did not file a grievance and has not sought any damages. There is therefore no continuing conflict underlying this complaint which necessitates the adjudication of the work assignment. In practical terms there is only a claim for declaratory relief by Local 46 that the work falls within its trade jurisdiction and should be assigned to it.

16Although the Board does not normally award damages in the adjudication of a jurisdic­tional dispute complaint, generally the adjudication of a section 91 complaint is made necessary because one or more of the parties has filed a grievance and claimed damages. The grievance and the claim for damages cannot be determined until a decision with respect to the assignment of the work has been made.

17In the absence of this underlying conflict between the contractor who assigned the work and a trade union we do not consider it appropriate or necessary to make declaratory orders regarding the trade jurisdictions of trade unions via the mechanism of a section 91 complaint. To hold otherwise would invite trade unions to file a section 91 complaint where the only reason for so doing is to obtain a declaration that work falls within its trade jurisdiction and should be assigned to it. The Board is an adjudicative body whose functions include, inter alia, the determination of conflicts or disputes. The Board is not an advisory body which should make declarations or deter­minations about work assignments or the work jurisdictions of trade unions in the abstract or in the absence of a concrete conflict or dispute which requires such determination.

18We hereby grant leave to the complainant to withdraw its complaint in Board File 3121-90-JD. The referral of the grievance in Board File 2669-90-G is also withdrawn with leave of the Board.