International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local, 128 v. Labourers International Union of North America, Local 1089 and Foster Wheeler Limited

[1991] OLRB Rep. August 990

0929-88-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local, 128, Complainant v. Labourers Interna­tional Union of North America, Local 1089 and Foster Wheeler Limited, Respondents v. Metropolitan Toronto Demolition Contractors Association, Intervener

BEFORE: Louisa M. Davie Vice-Chair, and Board Members J. Trim and N. A. Wilson.

APPEARANCES: Michael A. Church and Edward Power for the complainant; S.B.D. Wahl and R. Leone for Labourers International Union of North America, Local 1089; Robin McDonald and Jack Brochu for Foster Wheeler Limited; S. C. Bernardo and Bill Greenspoon for the intervener.

DECISION OF THE BOARD; August 2, 1991

1. This is a complaint filed under section 91 of the Labour Relations Act ("the Act"). This panel has been assigned to hear the merits of this complaint. For ease of reference the parties to this proceeding will be referred to as the Boilermakers, the Labourers, Foster Wheeler, and the MTDCA for the Metropolitan Toronto Demolition Contractors Association.

2. This matter came on for hearing before this panel of the Board on May 21, 1991. The purpose of the hearing was to hear "the evidence and representations of the parties with respect to any an all issues arising in this matter including but not limited to any preliminary matters, the order in which the parties will proceed, the continuation dates for the hearing and the merits of the complaint filed."

3. At the commencement of the hearing the parties raised as "preliminary matters" the order of proceeding, the number of hearing dates required and the scheduling of such dates, and the parameters of the evidence of area past practice. Another issue raised by the applicant Boiler­makers concerned the applicability to these proceedings of both the "demolition agreement" between the Labourers and the MTDCA, and the Labourers Provincial Agreement with respect to construction in the industrial, commercial and institutional sector of the construction industry. It was agreed however that this issue would be addressed by the parties during the course of these proceedings and would not be dealt with on a preliminary basis.

4. We note that during the course of the submissions by the parties with respect to these preliminary issues, counsel for the Labourers raised the propriety of Board Member N. A. Wilson sitting on this panel to hear this complaint. Mr. Wilson was previously an International Represettative for the International Association of Bridge, Structural and Ornamental Iron Workers ("the Ironworkers"). The pre-hearing conference memorandum, the submissions of the parties and the experience of this panel indicate that structural steel is a component both in the erection and dis­mantling or demolition of boilers of the type involved in this jurisdictional dispute complaint. Counsel for the Labourers stated that he did not object to Mr. Wilson's presence on the panel and did not wish to raise any apprehension of bias allegation but felt obliged to bring the matter to the attention of the Board and the other parties because evidence with respect to the trade jurisdiction of the Ironworkers could/would be led in evidence in this proceeding. This matter was then can­vassed by the Board with the other parties. None of the other parties objected to Mr. Wilson as a member of this panel and none raised any apprehension of bias concerns. Accordingly we contin­ued with the hearing.

5. With respect to the order of proceeding the parties have agreed that Foster Wheeler will lead its evidence first. Thereafter the Boilermakers will present their case followed by the Boil­ermaker Contractors' Association of Ontario if that association chooses to actively participate in these proceedings, the Labourers, and finally the MTDCA. Appropriate rights of cross-examina­tion and reply will be afforded to the parties in accordance with their agreement regarding the order of proceeding.

6. With respect to the number of hearing dates required to hear this complaint the parties agreed that twenty days would be required.

7. Thereafter the Board dealt with the third preliminary matter raised by the parties (more specifically raised by the Labourers) regarding the parameters of past practice evidence to be adduced and admitted in the adjudication of this complaint. In this regard the panel was referred to its earlier decision in this complaint reported at [1989] OLRB Rep. February 128 ("February 1989 decision"), the request for reconsideration of that decision dealt with by the panel in its deci­sion reported at [1989] OLRB Rep. May 451 and the unreported decision of the High Court of Jus­tice, Divisional Court, rendered on May 11, 1990 in the application for judicial review of those decisions filed by the Labourers.

8. We note that the Labourers did not specifically seek to raise this matter on a prelimi­nary basis. Counsel for the Labourers was content to have the matter dealt with as it arose during the course of the hearing when the Labourers would seek to adduce evidence which fell beyond the scope of the parameters of the evidence set out in our earlier decisions. The other parties to this proceeding however (and more specifically the Boilermakers) indicated that they would present their case on the basis of the evidentiary ruling made by this panel in our February 1989 decision. The Boilermakers therefore submitted that it reserved its right to reply to any evidence adduced by the Labourers which went beyond the scope of that evidentiary ruling if the Board determined to depart from its earlier ruling. Counsel for the Labourers indicated that he would object to such reply evidence.

9. Having regard to these positions of the parties and the history of this proceeding to date we directed that the issue with respect to the parameters of the evidence of area past practice to be adduced in this matter should be dealt with on a preliminary basis.

10. Jurisdictional disputes have consumed an ever increasing and disproportionate amount of the Board's resources. The length of the hearing to adjudicate upon a jurisdictional complaint has increased significantly over the past several years to the point where hearings lasting fifteen days or more appear to be the rule rather than the exception. As a result, panels of the Board hearing jurisdictional disputes have found it necessary to become increasingly interventionist to control the proceedings which take place before it. Practice has shown that it is more expeditious to deal with rulings such as the parameters of past practice evidence on a "preliminary" basis after hearing the representations of the parties as to the evidence which the parties desire to adduce and the purpose for which such evidence is sought to be adduced.

11. After directing the parties to proceed with this matter on a preliminary basis the Board heard submissions of counsel for the Labourers supported by counsel for the MTDCA that it would be necessary for the Board to hear viva voce evidence in order to properly determine the scope of the past practice evidence which it should admit in the hearing of this complaint. Counsel for the Labourers desired to adduce evidence to show that the parameters to the evidence set out in our February 1989 decision were "irrelevant" and had "no cogency".

12. Counsel for the Boilermakers and Foster Wheeler opposed the Labourers request to lead evidence on this evidentiary issue. They submitted that viva voce evidence was unnecessary and irrelevant to any motion concerning the appropriate parameters of area past practice evidence.

13. After hearing the submissions of the parties as to whether we should, in effect, permit counsel for the Labourers to adduce viva voce evidence about the evidence which he seeks to adduce in the hearing of the merits of this complaint we rendered the following unanimous oral ruling:

Counsel for the Labourers has raised an issue with respect to this panel's ruling rendered Febru­ary 1989 regarding the parameters of the evidence. We have determined that this issue should be dealt with on a preliminary basis.

Counsel submits that the ruling which was made in February 1989 (which was as he termed it, made in a "procedural continuum") was flawed as the Board cannot determine the parameters of relevant evidence in a vacuum. He asserts the Board should now hear certain evidence which he submits will show that there is "no cogency" to the lines of demarcation in the scope of evi­dence which the Board has drawn in its decision dated February 15, 1989.

In particular, for example, counsel for the Labourers wishes to adduce evidence to show that there is no relevant or cogent difference between whether the boilers were originally erected using Boilermakers or not, and that there is no significant distinction between the demolition of the work in dispute and other forms of demolition. Counsel wishes at this stage to adduce viva voce evidence in support of his submissions that there is "no cogency" to those parameters of the evidence established by this panel in our February 15, 1989 decision.

We are not prepared to hear such evidence. In our view there is nothing unique about excluding proposed evidence on submissions of counsel without hearing that evidence. In fact, having heard the submissions of counsel for the Labourers it is difficult to distingnish the evidence which he wishes to adduce in support of a motion with respect to the parameters of the evi­dence, from the evidence which he wants to adduce in the hearing of the merits of this com­plaint. We do not consider it necessary or relevant to hear such evidence for this motion.

We note further that even if the evidence sought to be adduced is as described by counsel for the Labourers, such evidence would be irrelevant or at best of such marginal relevance that it should not be admitted because, on balance it cannot assist in the adjudication of the issue in dispute in this complaint.

No purpose can be served by this Board hearing the viva voce evidence which Mr. Wahi wishes to adduce in support of his motion at this time. On the other hand if there are new or further submissions about the scope of the evidence which the parties wish to make, submissions which were not made or considered by this Board at the hearing on February 2, 1989 or the request for reconsideration dealt with in the Board's decision dated May 24, 1989 we will entertain those submissions at this point of the proceedings.

14. The "procedural continuum" referred to in the submissions of counsel for the Labourers was defined by counsel for the Labourers as the absence of notice or the inadequate notice given to the parties prior to the hearing convened to determine the parameters of the past practice evidence on February 2, 1989.

15. We do not intend to detail the lengthy submissions made by the parties in respect of the parameters of the evidence. Suffice it to say that they were the same, or substantially similar, to the submissions made at the hearing on February 2, 1989 or in their correspondence with respect to the request for reconsideration. There was nothing new in any of the submissions.

16. Counsel for the Labourers did argue that because of the "procedural" flaw with respect to the lack of adequate notice, this panel's decision dated February 15, 1989 and the request for reconsideration of that decision were void ab initio. Submissions regarding the scope of past prac­tice evidence therefore should not be dealt with under the rubric of a request for reconsideration but rather as an initial determination of the issue. Counsel argued that the hearing on May 31, 1991 was the first occasion on which the Board could consider the matter after proper notice had been given to all the parties.

17. Counsel for the Labourers asserted that the May 11, 1990 decision of the Divisional Court was "significant" because it dismissed the application for judicial review solely because it was ''premature''. In so doing the court observed

"There is no clear evidence before us that the panel has or will refuse to admit and consider all evidence presented by the parties that is relevant and otherwise admissible and to hear the sub­missions of counsel relevant to the issues as set out in section 102(13) of the Labour Relations Act."

18. It was submitted that this was an admonition by the Divisional Court that the merits hearing panel must determine the issue of relevant evidence and must do so after affording the par­ties the rights set out in section 102(13) of the Act. Counsel reiterated that this includes a require­ment to hear the evidence which addresses the scope of evidence to be adduced during the merits hearing before determining its relevance and weight.

19. Counsel argued that if we were not going to hear viva voce evidence before determining the parameters of past practice evidence, the Board must assume that the evidence which the Lab­ourers' seek to introduce exists and can be proven. He submitted that if the Board makes that assumption then it is readily apparent that in order for the Labourers union to present its case that the pervasive area practice in Board Area 2 is that demolition of structures for scrap is the work of the Labourers' union, evidence beyond the parameters set out in our decision dated February 15, 1989 is relevant and necessary. If for example the Board assumes (as counsel submits we must) that there is no difference between the demolition of the work in dispute and other forms of demoli­tion, then it is readily apparent that excluding evidence about such other forms of demolition is inappropriate and arbitrary. He argues the same holds true for any ruling which excludes evidence of the demolition of other boilers which were not field erected, or which are not steam generating or which were not originally erected using Boilermakers. Counsel asserts that if we assume (as counsel submits we must) that the Labourers' can prove that "demolition for scrap" falls within the jurisdiction of the Labourers, then we must inevitably conclude that the lines around the past prac­tice evidence which we have drawn in our February 1989 decision are neither cogent nor reason­able.

20. Counsel argued that by not allowing such evidence to be introduced the Board was act­ing in breach of the rules of natural justice by denying one party the right to present its case. He submitted that the "arbitrary" parameters to the evidence set out in our February 1989 decision constituted a predetermination of the relevance and weight of the evidence. The Board can not in the abstract and without hearing any evidence on the matter determine that the evidence which the Labourers seek to adduce is not relevant or has no weight.

21. In general terms however, and with the possible exception of the explicit submissions of counsel for the Labourers that the Board must hear evidence before determining the relevance and weight of that evidence, the submission by counsel for the Labourers were the same as those previ­ously made at the hearing on February 2, 1989 or in the submissions to the Board in the request for reconsideration of the February 1989 decision.

22. Similarly, with the possible exception of the explicit acknowledgement by counsel for Foster Wheeler and the Boilermakers that the Labourers do perform demolition work which falls outside the parameters of the February 1989 ruling (i.e. demolition not involving field erected, steam generating boilers for industrial application in an operating environment) the submissions of Foster Wheeler and the Boilermakers remained the same. In particular the Boilermakers asserted it was irrelevant to an adjudication of the proper assignment of the work in dispute in this case that the Labourers had performed other demolition work not in dispute. The Labourers could not use a claim to, or performance of, work not in dispute to claim work that is in dispute. Counsel for the Boilermakers also disputed the interpretation which counsel for the Labourers sought to put on the decision of the Divisional Court dated May 11, 1990. It was his position that the decision of the Court merely stood for the proposition that the judicial review application was premature.

23. We agree that a panel hearing the merits of a jurisdictional dispute complaint filed with the Board must "give full opportunity to the parties... to present their evidence and make their submissions". In our view that is the only conclusion that can be made from a proper interpreta­tion of the decision of the Divisional Court, section 103(12) of the Act and an understanding of the rules of natural justice.

24. In our view however there is nothing in the decision of the Divisional Court, the provi­sions of the Act, or the rules of natural justice which compel the Board to hear irrelevant evidence or evidence which can have no probative value to an adjudication of the issues in dispute. The dis­cretion given to the Board in the Act including sections 106(1), 102(13) and 103(2)(c) gives the Board inherent jurisdiction to determine what evidence may be relevant or have probative value to the adjudication of a complaint. That discretion does not derogate from the rights of the parties to be heard.

25. We concur with the decision of the Board in Acco Canadian Material Handling [1990] OLRB Rep. Sept. 915 where the Board stated:

26. Past practice evidence is only relevant to deciding the proper assignment of work in dispute if it can be tied in with the actual work in dispute. At the same time, the scope of past practice evi­dence should not be so narrow as to interfere with the party's full opportunity to present its evi­dence and make its submissions on the issue of the proper assignment. That raises the question of where is the sensible place to draw the line as to the past practice evidence to be heard. In the instant proceeding, in the Board's view, limiting past practice evidence to the two types of con­veyor systems was that place. This is because the two systems include a sufficient variety of con­veyors which might argnably be included in the term "monorail conveyor" so as to allow the parties full opportunity to present their evidence and make their submissions respecting the con­clusions to be drawn by the Board from past practice.

[emphasis added]

26. In our view, section 91 authorizes the Board to inquire into a complaint involving the assignment of "particular work" and not "work" in the abstract. Evidence must therefore relate to the work in dispute. We consider evidence of the demolition of other structures, (structures other than field erected, steam generating boilers in an operating environment) not to be relevant to the adjudication of this complaint.

27. The jurisdictional dispute complaint in this case is between the Boilermakers and the Labourers. Each trade union asserts a competing claim to the work. In order to determine that claim it is neither necessary, relevant, nor helpful to consider the assignment or performance of other work not in dispute but which perhaps may involve competing claims between the Labourers or Boilermakers and other trade unions.

28. It could perhaps be said that the past practice evidence of the demolition of other struc­tures is arguably relevant because it deals with what loosely may be termed as "similar facts". Counsel for the Labourers wants to adduce certain evidence which he asserts is arguably relevant given the theory of his case and asserts that the evidence should be admitted, considered, and ulti­mately weighed by the Board at the conclusion of the case.

29. In jurisdictional dispute complaints in the construction industry the evidence of past practice is almost limitless. If counsel for the Labourers' submission is taken to its logical extreme any party could seek to introduce viva voce evidence of each and every construction project at which the work in dispute, or work arguably analogous to the work in dispute has been performed. The Board must draw a sensible line of what is relevant to a fair and proper adjudication of the issues in dispute somewhere.

30. The work in dispute in this case is very specific. It is the demolition of a particular struc­ture in a particular environment. It is not demolition generally, or "demolition work" in the abstract. Evidence of demolition of other structures in other environments is, at best, collateral to the dispute between these two unions over this work. The statutory provisions which govern the admission of evidence by the Board (see for example sections 102(13) and 103(2)(c) of the Act and section 15 of the Statutory Powers Procedure Act) and the rules of natural justice require that the Board hear relevant evidence. These statutory provisions however do not require the Board to hear evidence which is "arguably" relevant especially where the limited value of that evidence is far outweighed by the time and expense which would occur if the parties were to embark on adduc­ing such additional evidence which is only collateral to the issue in dispute. In our view there is not a sufficient nexus between the "demolition" evidence which the Labourers want to adduce and the actual work in dispute. We have determined to "draw the line" to evidence which relates to or can be tied to the actual work in dispute. Even within the parameters of the February 1989 decision the parties have indicated they will require twenty hearing dates.

31. Section 91 is a method by which trade unions and employers can resolve disputes over trade jurisdictions without resorting to self help remedies. It is a means of securing industrial peace and harmonious labour relations without harmful work stoppages. The value of section 91 as a means of achieving industrial peace in the construction industry is seriously undermined if the reso­lution of jurisdictional complaints takes months or even years of expensive litigation to resolve. The resolution of jurisdictional complaints will become even lengthier and more costly if the par­ties embark on these collateral avenues of evidence. We do not propose to admit irrelevant evi­dence, or collateral evidence which is, at best only "arguably" relevant but which ultimately can have little, if any impact upon the issue in dispute.

32. As the panel hearing the merits of this complaint we have considered the evidence which the Labourers seek to introduce. We have considered its "arguable relevance" and have determined that, even if the evidence was admitted and proven, it is not relevant and can't assist in the adjudication of this complaint.

33. Finally we wish to correct an apparent misinterpretation by one or more of the parties of our February 1989 decision. That decision refers to boilers "originally erected using boilermak­ers". Contrary to the apparent understanding of one or more of the parties it was not the intention of the Board to limit evidence to boilers which were originally erected using only boilermakers. We view the demolition of steam generating boilers which were originally erected using boilermakers together with other trades including, for example the Ironworkers or the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada to be relevant and admissible.

34. We find it unnecessary to determine whether our decision herein is an "initial determi­nation" because our February 1989 decision was void ab initio, or whether our decision herein is a reconsideration of that earlier decision. However characterized, and after considering the submis­sions of the parties both at the hearing on May 31, 1991 and at earlier stages of this proceeding, we have determined that the evidence of the parties which goes toward the criteria of area past prac­tice and employer past practice should be limited to evidence relating to field erected, steam gener­ating boilers, for industrial application, originally erected using boilermakers, which were or are being dismantled or disassembled in an operating environment in the Province of Ontario.

35. At the hearing on May 31, 1991 we set the following dates to continue the hearing of this matter: December 2, 4, 1991, January 7, 8, 9, 14, 15, 22, 23, 28, 29, and 30, 1992. The parties have requested eight additional days. Those are to be set by the Registrar.