[1992] OLRB Rep. July 817
0348-92-G Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters & Joiners of America, Applicant v. Municipality of Metro Toronto, Respondent
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: James Nyman and Ucal Powell for the applicant; Darrel Smith for the respondent; Lawrence F. Ryan for Bemar Construction (Ont.) Inc. and John Calderon for Framing Design A. Div. of 948641 Ontario Limited.
DECISION OF THE BOARD; July 10, 1992
In this Referral of Grievance to Arbitration, the Board delivered an oral ruling at the Hearing on May 27, 1992, denying intervener status to Bemar Construction (Ont.) Inc. ("Bemar") and Framing Design A Div. of 948641 Ontario Limited ("Framing Design"), among other things. This oral ruling was reduced to writing on June 10. The Board is in receipt of a letter from Bemar dated June 30 that it will treat as a request for reconsideration.
First, we provide our reasons for the rulings of May 27. This matter began as a grievance filed on January 29, 1992 by the Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America ("Local 27") against the Municipality of Metropolitan Toronto ("Metro"). The grievance alleges that work covered under the collective agreement between Local 27 and Metro is being performed by other than members of Local 27. The grievance names the Coronation Park job site, and seeks as remedy compensation to the union and/or its members. On April 28, this grievance was referred to arbitration pursuant to the provisions of section 126 of the Labour Relations Act. A hearing in this matter was scheduled for May 27. As well, a Labour Relations Relations Officer was appointed to confer with the parties to endeavour to effect a settlement of the grievance prior to the hearing. By fax dated May 4, the Officer appointed notified the parties of a pre-hearing meeting to be held on May 21 at the Board's offices. Both a Notice of Hearing dated May 4, and the fax from the Board Officer made reference to the scheduling of this matter for hearing on May 27.
At the hearing of May 27, Bemar and Framing Design appeared before the Board through their representatives Lawrence Ryan and John Calderon, respectively, requesting an adjournment of the hearing to seek counsel, and status to intervene in the proceedings. As well, Bemar and Framing Design faxed identical letters to the Board on May 27 containing their requests for an adjournment and notice of intent to intervene.
We are informed that counsel for the respondent notified Bemar and Framing Design of the pre-hearing meeting and of the hearing, by fax on May 19, which fax also enclosed copies of the Notice of Hearing and notice of the pre-hearing meeting. Both companies had representatives at the pre-hearing meeting of May 21, and at that time indicated their intention to intervene in the hearing. Also at that meeting, the applicant's counsel advised the two companies of the applicant's intention to oppose the request to intervene. In their request to adjourn the matter on May 27, the representatives of the two companies indicate that they require time to seek counsel. This request was opposed by both the applicant and the respondent who take the position that the companies have had adequate notice. The Board agreed with the applicant and the respondent ruling that the two companies have had sufficient time to retain and advise counsel if they had so chosen. They were both present at a meeting with a Labour Relations Officer on May 21 with respect to these issues. By that meeting, at the latest, they were aware of the date set for the hearing of this matter, and also aware that their request to intervene would be opposed by the applicant.
With respect to the request of the two companies to intervene, Mr. Ryan and Mr. Calderon submit that Bemar and Framing Design have a financial interest in the outcome of the litigation between Metro and Local 27. Metro does not dispute that it is bound by a collective agreement with Local 27. It also acknowledges that the work that is the subject of the grievance is covered by the collective agreement. This work has been sub-contracted by Metro to Bemar. Bemar in turn advised Metro it has sub-contracted the work to Framing Design. Metro states that the terms of its contract with Bemar requires Bemar to use union contractors. Metro states that if the Board orders Metro to pay damages arising out of a violation of the collective agreement, Metro intends to deduct the value of those damages from its contract price to Bemar.
Also, although Mr. Ryan and Mr. Calderon did not elaborate to any great length, it appears that Framing Design takes the position that it is bound to a collective agreement with Local 27. Thus, Bemar takes the position that it is in compliance with its contract with Metro. Apparently, Framing Design alleges that it entered into an agreement with Local 27 to sign a collective agreement. Nothing was signed, because Local 27 had a change of mind. However, Framing Design considers that the agreement to sign a collective agreement binds the two parties to the Local 27 collective agreement (a proposition which on the facts alleged we view with considerable doubt, given the definition of "collective agreement" in subsection 1(1) of the Act). Metro Toronto takes no position on whether or not there is a collective agreement relationship between Framing Design and Local 271 Local 27 takes the position that it is not bound to any collective agreement with either Bemar or Framing Design.
Metro does not oppose the request by the companies for intervener status. Metro states that it is a "middle-man" in this dispute, in that if Metro is found in breach of its collective agreement with Local 27 and damages flow out of that breach, Metro will deduct the value of those damages from its contract price with Bemar. Metro accordingly agrees that Bemar has a financial interest in these proceedings. The applicant, on the other hand, strenuously opposes the request by the companies to intervene. Counsel for Local 27 states that the applicant has no dispute with Bemar or with Framing Design. The grievance is against Metro, alleging that Metro has breached its collective agreement with Local 27. Metro is not the "middle-man", but the very target of the grievance. How Metro chooses to pay its damages, if awarded, is of no interest to Local 27. Counsel states that over the years, the Board has consistently refused to grant intervener status to other sub-contractors in similar situations, on the basis that mere commercial interest in a matter is insufficient. Counsel referred us to the following cases, Ontario Hydro, [1986] OLRB Rep. May 663; C. U.P.E. v. Canadian Broadcasting Corp.,1990 CanLII 8078 (ON CA), 70 D.L.R. (4th) 175 (O.C.A.) and International Alliance of Theatrical Stage Employees v. Canadian Union of Public Employees et al., Supreme Court of Canada, File No. 22061, dated May 21, 1992 as yet unreported. Counsel submits that these last two decisions are distinguishable from this case.
We agree with the applicant. In our oral ruling we stated that we considered the issue of the standing of the two companies in this proceeding to be one that involves the Board's exercise of its discretion. Here, the financial interests of these two companies are affected only if the Board finds Metro to be in violation of its agreement with Local 27, if damages are ordered to be paid by Metro to Local 27, and if Metro chooses to recover these damages from monies that it would have paid to Bemar under its contract with Bemar. The relationship between Metro and Bemar, and the rights of Metro to recover its damages from Bemar, are not issues which arise under this grievance or under the collective agreement between Metro and Local 27. Rather, these issues are governed by the terms of a separate contractual relationship, and the Board does not have jurisdiction to determine the extent of those rights.
We adopt the analysis of the Board in Ontario Hydro, supra, which considered the request of a sub-contractor to intervene in a section 126 [then section 124] proceeding. In that case, counsel for the proposed intervener also relied on the potential for significant commercial prejudice as the basis for its request to intervene in the hearing. The Board in that case stated that there may well be cases under section 126 where persons other than parties signatory to a collective agreement will have the right to participate in an arbitration thereunder if they are bound by the agreement and their own rights are directly in question and may be determined by the arbitration. (See paragraph 20.) In other cases, however, the question of a person's standing requires the exercise of the Board's discretion. The Board in Ontario Hydro declined to exercise its discretion in favour of granting standing where the rights of the proposed intervener arose, not under the collective agreement which was the subject of the grievance, but under its own contract with Ontario Hydro, the respondent. The Board identified a concern for expedition in the context of section 126 hearings:
Proceedings before this Board under section 124 (now 126] were intended by the Legislature to be an analogue of the private arbitration process which section 44 (now 45] of the Act requires be provided for in each collective agreement as the final mechanism for resolving disputes over its interpretation, application, administration or alleged violation. This arbitration process is intended to be private and expeditious. The concern for expedition is particularly reflected in the prompt hearing requirements of section 124. The need for expedition will ordinarily militate against permitting intervention by a third party not entitled to participate as of right. Common sense suggests, and experience confirms, that the time consumed in hearing a matter will increase if the number of participants increases, because the mechanics of conducting and even scheduling the hearing become more complex. The essential nature of grievance arbitration as a private system for dispute resolution also militates against permitting intervention by a third party not entitled to participate as of right.
Counsel for the applicant referred the Board to the decisions of the Ontario Court of Appeal and the Supreme Court of Canada cited in paragraph 7 above, since they are recent and touch on the issues before us. Those decisions are consistent with our findings, as they dealt primarily with the question of notice as opposed to standing per se. In particular, we do not view the Supreme Court of Canada decision as requiring this Board to open its proceedings under section 126 to a party whose interests in a proceeding arise out of its rights under a separate contractual relationship with the respondent, over which this Board has no jurisdiction. The principles of Ontario Hydro, in our view, still apply.
The letter from Bemar, dated June 30, 1992, requesting reconsideration of our decision in this matter reads:
Having received and reviewed the Board's Decision dated June 10, 1992, in the above matter, please be advised of the following:
Bemar formally notifies the Board that it hereby appeals the Decision.
Bemar requests immediate written confirmation from the Board of receipt and acknowledgment of this notice.
Bemar hereby requests a Board order adjourning the above matter until this appeal has been processed and a reconsideration of the Decision ordered.
Should you have any questions, please do not hesitate to contact writer at (416) 795-0160.
- As stated above, the Board will treat this letter as a request for reconsideration. The Board directs Bemar to provide written submissions as to why our decision in this matter ought to be amended or revoked. These submissions shall be delivered to the Board no later than 5 p.m., Friday, July 17, 1992. The continuation of the hearing in this matter shall proceed on the date scheduled, July 14, 1992.