United Brotherhood of Carpenters and Joiners of America Local Union 785 v. Robertson Yates Corporation Limited, 1992 CanLII 6726

Ontario Labour Relations Board

[1992] OLRB Rep. April 507

1989-91-G United Brotherhood of Carpenters and Joiners of America Local Union 785, Applicant v. Robertson Yates Corporation Limited, Respondent v. Labourers' International Union of North America, Ontario Provincial District Council, Intervener

BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw

APPEARANCES: N. L. Jesin and Karl Ball for the applicant; Walter Thornton and L. R. Eller for the respondent; Susan Philpott and R. Weiss for the Intervener; Frank Calvi for United Flooring.

DECISION OF THE BOARD; April 21, 1992

1. This is a referral of a grievance to arbitration pursuant to section 126 [formerly section 124] of the Labour Relations Act. The Board is asked to defer consideration of this application to allow the filing and resolution of a jurisdictional dispute, but the applicant objects that the Board has no jurisdiction to deal with the dispute under section 93 [formerly section 91] of the Act.

2. The respondent, Robertson Yates Corporation Limited ("RYCO"), is a general con­tractor which was hired around December, 1990 to build three additions to the Toyota assembly plant in Cambridge, Ontario. The work was I.C.I. work. RYCO was bound to both the provincial agreements of the applicant, Carpenters Local 785, and the intervener Labourers. Both provincial agreements apparently contain clauses precluding the general contractor from subcontracting to subcontractors who are not also in contractual relationship with the particular union.

3. The head contract between the owner and RYCO required that subcontracting of certain work be let to United Flooring, and as a result, around June 7, 1991, that type of work was subcontracted to United Flooring. United Flooring has a collective agreement with the Labourers, but not with the Carpenters. Around August 1, 1991, the applicant Carpenters, Local 785 filed a grievance against the general contractor, RYCO, alleging a breach of the subcontracting clause in its agreement, claiming that the nature of the grievance was "subcontracting work of the union ……..”, and as remedial relief, seeking certain declarations and "damages to Local 785 for all hours earned due to above violation."

4. Upon receipt of the grievance, Lawrence Eller, the Vice-President of Field Operations for RYCO, sought advice from a representative of the local association of contractors, the Hamil­ton General Contractors Association. Mr. Eller also spoke to an official of United Flooring, Frank Calvi, inquiring whether United Flooring would hire a few carpenters. Mr. Calvi responded that United Flooring would not hire any carpenters, as it only had a collective agreement with the Lab­ourers. Further, the work in question subcontracted to United Flooring involved specialty work, and that company needed its existing employees in order to properly perform the work.

5. Subsequently, around August 29, 1991, Mr. Eller met with Karl Ball, the business rep­resentative for Carpenters, Local 785. Mr. Ball claimed that the work which had been subcon­tracted to United Flooring was Carpenters work, and RYCO was therefore in breach of its collec­tive agreement with the Carpenters. Mr. Ball suggested that RYCO should use its own carpenters to perform the work. Mr. Ball did not demand of Mr. Eller, directly or indirectly during this con­versation, that RYCO advise United Flooring that United Flooring had to hire carpenters to per­form the work. Mr. Ball testified that since the Carpenters did not have a collective agreement with United Flooring, it would have been inappropriate and futile to seek of RYCO a direction to the subcontractor that it switch to carpenters.

6. Shortly after this meeting, Mr. Eller heard from the Labourers union, which advised RYCO that the Labourers would be filing a grievance if the work was subcontracted in any fashion away from its members, which work its members currently were performing for United Flooring. The Labourers relied upon its provincial agreement with RYCO to support its assertion that its members were entitled to the work.

7. Caught between the Carpenters and the Labourers, Mr. Eller sought further advice from the Hamilton Contractors Association. On August 30, 1991, he sent a letter on behalf of RYCO to United Flooring, stating: "Please be advised that the framing of the bulkheads in this contract must be performed by carpenters as per the terms of our subcontract agreement." But notwithstanding this letter, when Mr. Eller and Mr. Calvi subsequently spoke, Mr. Calvi repeated that United Flooring would not be hiring carpenters, as the subcontractor only had an agreement with the Labourers. The two men then agreed that United Flooring would continue to use labour­ers. Mr. Eller testified that he agreed to this for two reasons. First, the contract with the owner did not allow RYCO to require that United Flooring work with carpenters, and second, as the Hamil­ton Contractors Association representative had advised, the Ontario Labour Relations Board would resolve the matter.

8. The issue before the Board is whether the above circumstances can constitute a jurisdic­tional dispute within the meaning of section 93(1) of the Labour Relations Act. The issue at this stage is not how the Board exercises any discretion it might have thereunder or whether the appli­cation ought to be deferred to the filing or hearing of a jurisdictional dispute; it is simply whether the Board has the jurisdiction, should it otherwise decide it is appropriate to do so, to hear the dis­pute as a jurisdictional dispute.

9. Section 93(1) of the Act reads as follows:

"93.-(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."

10. The Board must find its jurisdiction to entertain a jurisdictional complaint in the word­ing of the above section. In the circumstances before us, the Board must be satisfied that "a trade union... or an officer, official or agent of a trade union.. .was or is requiring an employer to assign particular work to persons in a particular trade union...

11. This is not a novel issue for consideration by this Board. Particularly in recent years, there has been a steadily increasing amount of litigation focusing on the literal wording of this sec­tion. This litigation has not revolved around whether a work assignment dispute exists, and if so, whether in the circumstances, the Board ought to exercise its discretion to ensure that a work assignment or work entitlement dispute between two or more unions is litigated under the jurisdic­tional dispute provisions of the Act. Rather than dealing with the practical realities, the litigation has centred on whether the facts fall strictly within the literal wording of section 93(1). This has been so regardless of whether a dispute of a jurisdictional nature has existed between the unions. This litigation has been expensive, it has substantially delayed the resolution of real and serious work jurisdiction disputes between unions, contractors, and subcontractors, and it has in cases resulted in true jurisdictional disputes being determined outside of the mechanism the Legislature has created for dealing with such matters.

12. Of course, the Board must be satisfied that it has jurisdiction under section 93 of the Act. We cannot consider a dispute under the provisions of section 93 simply because it "makes sense" to do so. To fall within the wording of section 93 in the instant case, the grieving union must have been or still is requiring the employer to assign particular work to it. The Board has regularly interpreted "employer" in section 93(1) to mean that the union must be requiring the assignment from the employer, the company directly hiring and employing employees to do the work in ques­tion, in this case the subcontractor United Flooring. See Napev Construction Ltd., [1980] OLRB Rep. Feb. 247.

13. The nature of the grievance, alleging a breach of the "no subcontracting" clause in the Carpenters' agreement necessarily implies that the work subcontracted to United Flooring is work that would fall within the parameters of the Carpenters' provincial agreement, to which RYCO is bound. The grievance is therefore a claim by the applicant union for the work in question. This conclusion is buttressed by the remedies sought by Local 785, damages "for all hours earned due to [the] violation." The remaining question, and the focus of the issue before us, is whether the Car­penters union is requiring the employer, United Flooring, to assign this work to its members. Car­penters, Local 785 has not asked the general to convey to the subcontractor a demand by it for the work. It has not directly communicated with the subcontractor.

14. The cases on point have considered whether the general contractor can be said to have acted as an "agent of a trade union". When the general has passed on the grievance filed against it demanding the work to the subcontractor, together with any sort of indication that the subcontrac­tor should comply with the grievance or in some way change its assignment to the benefit of mem­bers of the grieving union, the Board has generally concluded that the demand for the work has in effect been made also of the subcontractor, as the "employer". Through this "agency" analysis, the Board has concluded that the grievance against the contractor constitutes a demand for the work of the employer, even though the grieving union has no bargaining relationship with the employer (and even though the union's "agent" has been the party which it is asserting has breached the collective agreement).

15. We do not propose to canvass the "agency" cases here, as we need not resolve the issue before us employing the "agency" analysis. It is not only through such an "agency" that a demand can be found to have been made of an employer. Focusing on the "agency" principle should not obscure the issue. Whether or not the general contractor acts as agent for the trade union in pass­ing on the grievance, the jurisdictional question for the Board to decide remains the same. Has the trade union made a demand of the employer for the work in question, or to use the statutory lan­guage, required that the employer assign work to it. In answering this question, one first needs an understanding of the context in which these disputes arise.

16. The nature of the "subcontracting" clause was discussed at some length in The Metro­politan Toronto Apartment Builders Association, [1978] OLRB Rep. November 1022, where the then Chairman of the Board wrote, in part, as follows:

17. In arriving at this conclusion the Board recognizes that, in the context of the construction industry, a sub-contracting clause may serve a purpose parallel to that of the union shop, or union dues provision, in the industrial setting. Both types of clauses can be construed as attempts by trade unions to enhance their strength as collective entities. At this point, however, the comparison ends. Union security in the industrial setting appears to refer primarily to provi­sions, such as union shop clauses and dues shop clauses, which serve to ensure that all members of the bargaining unit contribute to the financial support of the bargaining agent. In the con­struction industry, on the other hand, union security appears to be more related to contractual provisions recognizing the union's claim to particular work, i.e., the sub-contracting provisions. These provisions appear to be primarily directed at preserving a union's work jurisdiction so that it can continue to provide work for its members. The construction union in so doing is then able to maintain its own strength as a collective entity.

18. The object of a sub-contracting clause is to preserve the work jurisdiction of the trade union which is the beneficiary of the clause. While it may be that a sub-contracting clause, such as the one contained in the MTABA-Council agreement, has a much greater impact than the one con­tained in the agreement between Local 1 and the MCAT, both share a common purpose - to ensure that any work contracted-out is performed only by members of the union which has obtained the sub-contracting clause. In both cases, moreover, this purpose is carried out by the placing of restraints upon the tendering of sub-contracts, restraints that prevent the members of other unions from gaining access to the work. In the light of these considerations it would not be consistent for the Board to distinguish between forms of sub-contracting arrangements. In the Board's view, all such arrangements fall outside the scope of section [47(l)(a)], and must find their legal justification elsewhere in the Labour Relations Act. If the sub-contracting provision in the MTABA-Council agreement is illegal then so must be the sub-contracting clause in the Local 1-MCAT agreement.

19. The question for the Board to decide is whether the sub-contracting provision in the abstract violates any provision of the Labour Relations Act. This appears to be the first occasion when this question has been put directly to the Board, although on other occasions the Board has had to deal with sub-contracting provisions. These previous decisions indicate an implicit recognition by the Board of the legal validity of sub-contracting arrangements. In cases such as Beer Precast Concrete Ltd., [1969] OLRB Rep. Jan. 1108, Beer Precast Concrete Ltd., [1970] OLRB Rep. May 224, Ellis-Don Ltd., [1971] OLRB Rep. Sept. 620, Abe Dick Masonry Ltd., [1972] OLRB Rep. Jan. 74, Northdown Drywall and Construction Ltd., [1972] OLRB Rep. Jun. 666, Acme Lathing Co. Ltd., [1972] OLRB Rep. Mar. 215, Donaldson Barron Ltd., [1976] OLRB Rep. Dec. 793, the Board was faced with work jurisdiction problems created by sub-contracting pro­visions and the issues of whether the Board should deal with such problems by applying the jur­isdictional dispute procedures now found in section [93] of the Act. While the Board did not apply its jurisdictional disputes procedure in all of these cases, it is clear that the Board regarded the sub-contracting provision in each of these cases as being a legitimate attempt by a union to assert its jurisdiction over particular work. In Napev Construction Ltd. and Vepan Leaseholds Ltd., [1976] OLRB Rep. Mar. 709, moreover, the Board went even further in recognizing the legitimacy of the sub-contracting clause by making it clear that the sub-contracting provisions in a collective agreement could be enforced by a referral under section [126] of the Act. These decisions leave no doubt that this Board in previous decisions has implicitly recognized the legality of the sub-contracting arrangement.

20. This Board's recognition of the legitimacy of sub-contracting clauses is not inconsistent with the manner in which these provisions have been treated in other Canadian jurisdictions. In R.M. Hardy and Associates Ltd., [1977] 2 Can. LRBR 357, the British Columbia Board, speak­ing to both the sub-contracting clause and the non-affiliation clause (which is not an issue in this case), made it clear that these types of clauses did not amount to illegal coercion under the Labour Code of British Columbia. This decision was entirely consistent with an earlier decision in the British Columbia Court of Appeal. In Canadian Iron workers Union No. 1 v. International Association of Bridge, Structural and Ornamental Ironworkers Union, Local No. 97 (1970), 70 CLLC, ¶14,053 (B.C.C.A.) all three justices came to the conclusion that the sub-contracting clause did not violate any collective bargaining statute, a view which appears to have been accepted by the Supreme Court of Canada when this decision was appealed (see [1972] 5CR. 295). This conclusion was later followed in Canadian Pacific Railway Company and Brother­hood of Railway, Airline and Steamship Workers, Freight Handlers, Express and Station Employees v. Building Material, Construction and Fuel Truck Drivers Union, Local 213 of Inter­national Brotherhood of Teamsters, 1975 CanLII 991 (BC CA), [1975] 5 W.W.R. 329 (B.C.C.A.). These decisions appear to recognize that the primary purpose of the sub-contracting provision is to protect the work jurisdiction of the union which has obtained such a clause, a purpose not in conflict with any col­lective bargaining legislation.

21. Our conclusion that sub-contracting clauses are not prohibited by the Labour Relations Act does not mean that such clauses establish an exclusive claim to the work in question. The facts of this case indicate that changing economic conditions have brought the two bricklayers unions into conflict over their respective work jurisdictions. Whereas a few years ago the work jurisdic­tions of the two unions were more insulated from each other, Local 1 being in what was primar­ily private residential construction and Local 2 being in primarily industrial, commercial and institutional construction of a non-residential nature, the recent emphasis upon the construction of public housing appears to have caused some overlap in their respective work jurisdictions. This apparent overlap of jurisdiction gives rise to the possibility of an application under section [93] to resolve the competing jurisdictional claims.

22. The Board has made it clear that the enforcement of a sub-contracting clause against a gen­eral contractor can be interpreted as a requirement that an employer 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 within the meaning of section 193(1)1 of the Labour Relations Act. See Beer Precast Concrete Limited, [1969] OLRB Rep. Jan. 1108, Donaldson Barron Ltd., OLRB Rep. Dec. 793 and, for a general discussion of what constitutes a jurisdictional dispute, Eamon Riggs Limited, [1978] OLRB Rep. Mar. 228. Given the Board's decisions that an attempt to enforce a sub-contracting clause against a general contractor can set in motion the section 1931 procedure, it would appear to follow that the natural operation of a sub-contracting clause can also give rise to the same legal result. In other words, once a contract is let pursuant to a sub-contracting clause, then at that point it can be said that a trade union is requiring an employer to assign particular work to persons in a particular trade union rather than to some other trade union, giving access to the jurisdictional dispute procedures under sec­tion [93]. The jurisdictional dispute only materializes when the contract is let, as it is at that point that there comes into existence a particular work assignment flowing from the sub-con­tracting provision.

23. And in Pigott Construction Limited [1990] OLRB Rep. Apr. 441, the Board wrote, in part, as follows:

“30. Having work performed by way of subcontract to trade contractors like the electrical and mechanical contractors on the hospital projects, is fairly typical of building construction in the unionized part of the ICI sector of the industry. That practice results largely from the historical development of a division of labour in the construction industry based on the principle of opera­tional specialization, particularly in the United States and Canada.

31. The effect of the division of labour by trade or craft is clearly visible in the international unions which represent construction tradesmen in Canada and the United States. Approxi­mately 20 of these unions joined together to form the Building and Construction Trades Depart­ment of the AFL-CIO. They are known as the building trades unions. Some 13 of these building trades unions have a presence in construction in Ontario. They also are the unions who hold the exclusive bargaining rights for their trades under the province-wide bargaining scheme in the ICI sector. Historically each building trades union has sought to organize all of the employees in its trade rather than all of the employees of an employer, as in the industrial union model. Each claims to itself exclusive jurisdiction in the construction industry for its trade and the work per­formed by the trade. That is one means by which each of these unions seeks to assure that its members will retain a share of the available work in the industry. These are institutional claims and, while the building trades unions will seek to enforce their claims through protective provi­sions in their collective agreements, they have used whatever lawful means which they thought would be effective in the particular circumstances. A classic work jurisdiction dispute results when a union perceives "its work" being done by persons other than its members and seeks to change that circumstance by demanding that it be done by its members. Where, as here, it occurs in the unionized ICI sector of the industry, it is a struggle between two or more of the building trades unions over which union's members will do the work.

32. One of the effects of operational specialization on building construction is visible in the way employers have organized themselves to perform construction work. Typically there are general contractors and trade contractors. A general contractor usually deals directly with the purchaser of construction and takes charge of an entire project. The general contractor may employ brick­layers, carpenters, construction labourers, cement masons (cement finishers), operating engi­neers and rodmen, but may, and frequently does choose to perform only a limited amount of work with its own employees. Instead it will choose to subcontract packages of work to subcon­tractors, many of whom will limit the work they take to that which is performed by one or two trades. These are the trade contractors and their specialization is defined by the trades which they employ and, in the unionized part of the industry, by the trade unions representing those trades. In the unionized ICI sector in Ontario, an electrical contractor employing only electri­cians represented by the IBEW and a mechanical contractor employing only plumbers and ste­amfitters represented by the UA would be common examples of trade contractors. 16 of the 17 hospital projects in evidence in this proceeding are examples of general contractors subcontract­ing packages of electrical and mechanical work to electrical and mechanical trade contractors.

33. One of the obvious consequences of such practices is that trade contractors are largely dependent upon general contractors continuing their subcontracting practices. So are the trade unions which represent those trades dependent on the practices continuing for there to be work opportunities for their members, unless, of course, the general contractor employs them directly to do the work. Where, as has happened here, the general contractor assigns work directly to a trade different from the one which would have performed it had the general contractor subcon­tracted the work, it poses a difficult dilemma for the trade union whose members lose the work opportunity. For example, in the instant case, the real complaint of the IBEW and the UA is with Pigott (and the Carpenters and the Labourers), but they have no collective agreements with Pigott and, therefore, no grievance and arbitration process available to them. The agree­ments binding on the IBEW and the UA are with electrical and mechanical contractors who likely share with the two unions their interest in retaining jurisdiction over the work in dispute.

When Pigott disagreed with the complainants' claim to the work, they pursued the claim by fil­ing this complaint under section [93] of the Act.

34. Work jurisdiction disputes are a perennial problem for the construction industry. Seen from outside the industry, they appear to be senseless fights between members of the building trades family of unions about which union's members are to get a particular work assignment; or, to put it another way, about which union's members will be employed and which ones will be unemployed. But when such disputes are viewed in the context of the operational specialization prevalent of the construction industry, the claim of jurisdiction over a particular kind of work is but one of several mechanisms relied on by the building trades unions to protect their members' share of the available work. Protecting work jurisdiction claims is an integral part of the union security provisions in construction industry collective agreements. The closed shop hiring hall system and limiting the subcontracting of the claimed work to contractors with whom the union has a collective bargaining relationship complete the protection. This approach to job security might not be acceptable outside of the construction industry, but that is not reason to condemn its use in the industry. Those mechanisms both reflect and attempt to balance the economic and structural forces which operate in the construction industry."

35. Although the province-wide scheme of collective bargaining and trade jurisdiction in the I.C.I. sector of Ontario, set up and circumscribed by the applicable parts of the Labour Rela­tions Act, is premised upon particular unions holding the exclusive bargaining rights for their respective trades, the reality is that more than one craft or trade union can reasonably claim to be entitled to perform specific work. The designation system and the provincial units described therein (see section 141 [formerly section 139] of the Labour Relations Act) do not create airtight, mutually exclusive, trade jurisdictions. Indeed, numerous designations arguably overlap on their very wording. Even a cursory contact with the construction industry in this sector will amply dem­onstrate the overlapping jurisdictions of different trades, and the disputes that such overlapping jurisdictions have engendered. This potential for jurisdictional disputes also exists in non-I.C.I. sectors of the construction industry. And, it is quite common for a general contractor or subcon­tractor to be bound to an agreement with more than one trade, and for each of the applicable agreements to contain restrictions on the ability of the contractor, subcontractor or employer, if you will, to subcontract to companies not also in a contractual relationship with the trade union. Taken together in the context of the industry, given the nature and purpose of subcontracting clauses and that trade jurisdictions can and do overlap, and that contractors may be bound to two or more collective agreements which appear to conflict or overlap in terms of the type of work they cover, jurisdictional disputes are understandably common.

36. That is not to say that contractors, who are bound to agreements with different craft unions which appear to encompass the work in question, ought to be or will be protected by this Board from the consequences of any breach of the collective or provincial agreement affecting the work entitlement of members of a particular trade union. It is only to say that general contractors and subcontractors, along with the craft unions that dominate in the construction sector, are often signatory to or bound to more than one collective agreement which can quite arguably cover the particular work in question. And it is to say that two-party grievances often mask the true three-party dispute at the heart of the matter. And it also can and does mean, in a given case₄ that a par­ticular union may not be entitled to perform certain work described in its collective or provincial agreement even though the type of work would appear to be covered by the text of the agreement. A two-party grievance cannot best deal with the issue, the work jurisdiction dispute between unions.

37. It is also important to understand the significance of Board decisions that find, impli­citly or explicitly, that certain work "belongs" to a certain trade union. Again, it is overlap areas of potential entitlement to work by a trade union that give rise to the overwhelming majority of juris­dictional disputes. When these disputes are litigated, each competing union asserts that past prac­tice, whether in a particular Board area or for a particular employer, favours the assignment of the work in question to it; that is, in reaching a decision as to the correct assignment, the Board will give significant weight to relevant past practice, including decisions of this Board. Thus, where the Board issues a decision that a certain kind of work is properly the work of a particular union, the Board may well be making a decision having wide precedential impact, affecting further assign­ments of similar work, perhaps wherever situated in the province. The Board's decision will almost certainly be relied upon in any further work jurisdiction disputes by the successful union. As well, the Board's decision could have significant negative ramifications for the subcontractor awarded the work.

38. Thus, it may not be appropriate to resolve such multi-party disputes in a section 126 application, in which only the applicant union and the respondent company generally participate, and which context deprives the Board of the full panoply of powers and abilities given to it under the provisions of section 93, powers that may be necessary to consider the true issues and to fash­ion appropriate remedial response. For example, where what is truly a jurisdictional work assign­ment dispute is litigated in a section 126 application, the issue, at least initially, will be only whether the respondent has breached the "no subcontracting" clause of the provincial agreement. But that issue will likely involve a consideration of whether the work in question is covered by the particular provincial agreement. The grieving union of course asserts this. In order to find a breach, the Board would have to conclude that the work in question that was subcontracted was work covered by the provincial agreement. Thus the grieving union will have obtained a declara­tion that particular work "belongs" to it or its members. Perhaps the next time, or concurrently in another section 126 application, a different craft union is the applicant in a section 126 application. The second union might well be successful in obtaining a declaration from the Board that the work in question in its section 126 application falls within its agreement or jurisdiction. As discussed above, many types of work can quite arguably fall within more than one collective agreement or more than one trade's jurisdiction. In this piecemeal fashion, a jurisprudence would develop of Board decisions which find work to be covered by many different collective agreements and trades, without any mechanism by which the Board can decide the true issue: in a contest between two or more unions, and in competing claims between two or more unions, where ought the work in ques­tion to be assigned?

39. Here it is not simply the question of whether the Carpenters union has filed a grievance against United Flooring. It obviously has not, nor could it. It is not claiming that the subcontractor has breached a collective agreement. Nor is it simply the question of whether the Carpenters are applying direct pressure on United Flooring to redirect the work to members of its union, nor does it matter that the Carpenters have not communicated directly with the subcontractor. On the facts, and having regard to the context, we are satisfied that the Carpenters, Local 785 has made a demand for the work in question of the employer. In practical terms, albeit indirectly, the appli­cant union is requiring the employer to assign the work in question to it. The grievance itself is clearly a demand by the union for the work in question. Although damages are sought in the griev­ance, they would only flow if the work was subcontracted in breach of the collective agreement. Implicit in the damages claim is the assertion that the work is carpenters' work covered by the agreement, performed by carpenters. The Carpenters made this clear to RYCO, that the work was theirs. When that grievance was communicated to the subcontractor, the applicant indirectly demanded the work of the employer. This remains so even though neither the general contractor nor the grieving trade union has directly put pressure on the subcontractor to comply with the grievance demand or to somehow redirect the work. What matters is that, because of the way the construction industry works in this province, the demand for the work by the union was for all practical purposes a demand made of the employer, United Flooring. In this respect, it is worth noting that both United Flooring and the Labourers' recognized that a demand for the work was being made upon United Flooring. The grievance prompted the Labourers' to put RYCO on notice that it would file a grievance if the work in question was removed from its members.

40. The grievance may lead to a decision that the work is covered by the Carpenters' collec­tive agreement. If this should occur, the ability of the subcontractor to obtain further work in the area may be immediately and negatively affected. In these circumstances, it would be ignoring reality to conclude that the applicant Carpenters are in no way demanding this work "of the employer". The pressure on the subcontractor, and the risks to it of a decision that the work in question "belongs" to the other union, still exist even though neither the general contractor nor the subcontractor expect that the assignment that is the subject of the grievance will be changed in response to the filing of the grievance, and its communication to the subcontractor.

41. This is not the first time that the Board has taken this approach. In Pre-Con Company, A Division of St. Marys Cement Limited [1981] OLRB Rep. July 947, the Board wrote, in part, as follows:

“17. We turn now to the second and third arguments made by the Carpenters which is that the Carpenters are not directly requiring Pre-Con to assign work to the members of the Carpenters Union, nor are they indirectly through Harbridge and Cross as their agent, requiring Pre-Con to assign the work to members of the Carpenters Union. While there may have been evidence that the Carpenters were directly requiring Pre-Con to assign work to members of the Carpenters Union through the conduct of Mr. Grisolia, it is not necessary for us to make a finding in this regard. We are clearly of the view that the Carpenters through their grievance against Har­bridge and Cross intended to put 'pressure" on Pre-Con to assign such work to Carpenters. Clearly, in filing the grievance against Harbridge and Cross, the Carpenters are seeking the assignment of certain work, and it is naive to suggest that Harbridge and Cross would sit idly by and not transfer this request to Pre-Con. Harbridge and Cross' transference of this request to Pre-Con through its letter referred to in paragraph 11 above, was applying precisely the kind of 'pressure" that the Carpenters wanted applied on Pre-Con. In that sense, Harbridge and Cross is acting as the "agent" making a requirement on the Carpenters behalf, directly to Pre-Con. This is precisely the manner in which Pigott Construction acted as the agent for the Ironworkers in the Beer Precast case, (Regina v. Ontario Labour Relations Board, Ex parte International Association of Bridge, structural & Ornamental Iron Workers, Local 736 1968 CanLII 460 (ON HCJ), [1969] 1 O.R.405), in which the Ontario Supreme Court found that Pigott acted as agent for the Ironworkers within the meaning of section [93] of the Act.

20. Of particular concern in the present dispute is the matter of conflicting provincial collective agreements binding upon a general contractor. We are of the view that where the contractor is bound by such completely conflicting collective agreements, and an attempt is made to enforce those agreements, that that is prima facie a jurisdictional dispute. This is particularly so in the present case where the general contractor bound by such conflicting provincial agreements puts pressure on the subcontractor actually employing the men. We are prepared to view that as "re­quiring" the subcontractor within the meaning of section [93(1)1. Not only are we satisfied that the Board has the jurisdiction to entertain such complaints under section [93], but such a proce­dure affords all of the affected parties an opportunity to protect their interests, and section [93] gives the Board the broad powers to develop an appropriate labour relations remedy. In the cir­cumstances the Registrar is directed to list this matter for continuation of hearing."

21. The Board there concluded that when a contractor is bound by conflicting collective agreements, and an attempt is made by a union to enforce those agreements, prima facie a jurisdic­tional dispute exists.

22. In Harold R. Stark Company Limited [1982] OLRB Rep. Feb. 222, the Board com­mented upon paragraph 20 of Pre-Con, as follows:

"15 In view of the Board's conclusion that the Carpenters' union had used the general con­tractor as its agent to require that Pre-Con assign the work to carpenters rather than to labour­ers, this comment was unnecessary to the result. Further, the comment was made in the context of, and referred to, a general contractor putting pressure on the subcontractor actually employ­ing the men doing the work, which is not the situation before us. Given the specific context in which the statement was made, we doubt whether the Board in the Pre-Con case meant to indi­cate that in every case where an attempt is made to enforce a subcontracting provision which conflicts with a similar provision contained in another relevant collective agreement, section [93(1)] automatically becomes applicable. Indeed, in our view, the wording of section [93(1)1 simply does not support such a general conclusion."

The Board in Stark concluded that the wording of section 93(1) precluded the Board from dealing with the dispute under that section. In response to concerns that the true jurisdictional dispute could not be properly dealt with, the Board wrote:

16. In their submissions, the parties, other than U.A. Local 463, clearly indicated their concern that if this matter could not be dealt with under section [93], then it would be dealt with in a sec­tion [126] arbitration proceeding where the root jurisdictional issues would not likely be fully addressed. This is an understandable concern. However, such a concern cannot be a basis for giving section [93(l)] a meaning not contemplated by the statute. It may be that the concerns expressed about having what is essentially a jurisdictional matter dealt with at arbitration can in fact be dealt with in the context of the Board fashioning a remedy in the section [126] arbitration proceeding, assuming, of course, that a violation of the subcontracting provision in the applica­ble collective agreement is made out. Can it be said, for example, that a construction trade union has properly sought to mitigate the damages in circumstances where it is alleging a viola­tion of a subcontracting provision, but at the same time has refrained from seeking an assign­ment of the work from the employer actually responsible for assigning it. Similarly, it may be open to question as to whether in a section [126] proceeding any order should go requiring an employer to cease subletting certain work to a firm employing members of one union, and requiring him to do it himself or have it done by another contractor using members of the griev­ing union, in circumstances where although the matter arises out of a jurisdictional dispute the grieving union has not brought the matter within the provisions of section [93] so as to allow the jurisdictional issues to be properly canvassed and ruled upon. This is particularly so in light of the fact that the subcontractor and the union whose members are actually performing the work will likely not have standing to participate in the section [126] arbitration proceedings. We raise these issues only as matters which perhaps should be addressed at a later time, and reach no conclusions with respect to them."

The Board in Stark recognized that the dispute before it was jurisdictional in nature, over the cor­rect work assignment, but felt constrained by the statutory language. Decisions before and after have continued to take different views. The jurisprudence has remained inconsistent, and litigation over the jurisdiction of the Board has continued to occur with increasing frequency. The real issue between the parties gets delayed while this preliminary jurisdiction issue gets litigated.

27. With respect, in our view, the Board will generally have jurisdiction under section 93(1) when a grievance or application under section 126 of the Act, filed by a union against the general contractor, alleges a breach of the "no subcontracting" clause, and the grievance or demand is communicated to the subcontractor. This will generally be so even when the subcontractor does not have a bargaining relationship with the grieving union. Although not a demand made directly by the grievor of the "employer", and although not a claim that the subcontractor has breached any collective agreement, given the way in which the construction industry operates, both in prac­tice and as structured by the relevant legislation, the grieving union has made a demand for the work in question, the demand is made of the employer, and the grieving union is in practical terms requiring of the employer that the work be assigned to it.

28. In the recent unanimous decision of the Board in Foundation Company of Canada Limited [1990] OLRB Rep. May 521, the facts were similar to those before us. The Board in Foundation noted that when the general contractor conveyed the grievance to the subcontractor, the general did not expect that the subcontractor would comply with its request that the assignment or hiring by the subcontractor be changed. The Board found it hardly surprising, then, that the assignment was not changed by the subcontractor. This is true here also. The grieving union in that case, again as in ours, did not directly deal with the subcontractor. As the Board stated at para­graph 13 therein:

“13. In determining on the facts before us that Foundation was acting as agent for the Ironwork­ers, the Board has adopted the general approach of the Pre-Con Company decision. In our view, the general position of the Ironworkers was that it wanted its members to perform the work in dispute. Although its representations to Foundation indicated that it wanted to obtain the work in dispute in a particular way, the Ironworkers' ultimate goal was to obtain the work in dispute. In response to receiving the Ironworkers' grievance, Foundation directed Duron to employ Ironworkers to perform the work in dispute. In effect then, Foundation's response to the grievance was to make a direction to Duron consistent with the ultimate object of the Iron-workers."

Recent jurisprudence of the Board recognizes this more realistic approach: See in this regard, for example, Schindler Elevator Corporation [1990] OLRB Rep. Oct. 1092; Vic West Steel Limited [1991] OLRB Rep. Jan. 111; PCL Constructors Eastern Inc. [1991] OLRB Rep. Mar. 354.

29. If Carpenters, Local 785 had requested of United Flooring that the work should go to its own members, there would be no question that the technical requirements of section 93 had been met. That, of course, did not happen. But why should the jurisdiction of the Board be any different, given the wording of section 93, merely because there was no direct request by the griev­ing union of the subcontractor? Or why should the Board's jurisdiction depend on whether real pressure is put by the general on the subcontractor to change the assignment? The nature of the underlying dispute will not have changed, nor will the fact that all the players have the same inter­est in the result, including the subcontractor and its union. The potential effects of a Board deci­sion on future work assignments or jurisdictional disputes will remain the same.

30. To summarize, we are satisfied in the circumstances that the nature of the grievance filed, and its having been communicated to the subcontractor, United Flooring, constituted a demand for the work by the trade union of the employer within the meaning of section 93(1) of the Act. Accordingly, we are satisfied that the Board has the jurisdiction to entertain the dispute as a jurisdictional dispute under the provisions of section 93.

31. This conclusion should not be taken as a comment on how the Board will, either here or in any case, exercise its discretion under section 93(1). Our decision is only that we have a discre­tion to hear the dispute as a jurisdictional complaint, because the facts fall within the ambit of sec­tion 93. The effect of our decision, it is hoped, will be to reduce or eliminate in the future the type of litigation that has been occurring, over whether a demand for the work has been made of the employer within the meaning of section 93. Litigation will no doubt continue to result over whether the particular dispute in the section 126 application is better dealt with under the jurisdic­tional complaint provisions in section 93, by deferring the section 126 application to allow a juris­dictional dispute to be filed, or by adjourning the section 126 application to be heard together with any jurisdictional dispute that has been filed.

32. Jurisdictional disputes before the Board are expensive and time consuming. In recent years the Board has tried to reduce the incidence of such complaints and the expense of litigating them, both in terms of financial cost and the prejudice caused by delay. The prehearing confer­ence, with the requirement for extensive prehearing briefs, is one approach adopted by the Board. Recent jurisprudence illustrates the reluctance of the Board to allow the escalation of grievances to jurisdictional complaints under section 93, unless or until it is appropriate to do so. See, for exam­ple, Schindler Elevator Corporation, supra; Vic West Steel Limited, supra; PCL Constructors East­ern Inc., supra.

33. In Ontario Hydro (unreported, December 20, 1991, Board File No. 2627-90-G) the Board dealt with, amongst other matters, whether a section 126 application ought to be deferred to the filing of a jurisdictional dispute. As the Board wrote:

34. The application was filed on January 10, 1991, alleging two different breaches of the collec­tive agreement; that the respondents Hydro/EPSCA breached the agreement first, in their fail­ure to hold a mark-up meeting, and second, in their failure to employ members of the applicant to perform the work in question. These two matters, the "mark-up" aspect and the 'work assignment" aspect, were severed by the parties, and the case initially proceeded solely on the basis of the alleged breach with respect to the mark-up meeting. At a hearing on June 20, 1991, Minutes of Settlement were filed by the parties with respect to the mark-up grievance. The Board's decision of July 16, 1991 reflected their agreement and held that Hydro had breached the collective agreement in its failure to hold a-mark-up meeting. In response to the request of the applicant, the Board convened a further hearing to deal with the remedial aspects arising from this finding. This decision deals with those remedial matters.

35. The work in dispute involved the construction of several Quonset huts, which Hydro awarded to the Iron Workers, Local 736. The applicant Sheet Metal Workers, Local 537, argued that damages flowed from the breach, the failure to hold the mark-up meeting. It submitted that the Board could determine the quantum of damages without actually determining whether the assignment in question had been correctly made. It asserted that the correct basis for determin­ing the damages for the breach was for the Board to determine the probability that the Sheet Metal Workers would have been successful, had the mark-up meeting been held, in obtaining the assignment of the work in question. If the Board were satisfied, after evidence and argument on this issue, that there was (for example) a 50% likelihood that the assignment would have been made by the employer to the Sheet Metal Workers, then the Board ought to award to the applicant damages at the level of 50% of the amount that the Sheet Metal Workers would have received had they actually performed the assignment in question. Damages awarded on this the­ory would, it was submitted, reflect the "loss of opportunity" due to the failure to hold the mark-up meeting, and would appropriately attempt to compensate for the effect of the breach.

36. In response, Hydro/EPSCA argued that damages for its breach would only flow if the appli­cant would in fact have received work through the original assignment, after a mark-up meeting had been held. The Board must utilize the best mechanism or procedure for assessing those damages. The respondents asserted that a jurisdictional dispute under section [93] is the appro­priate mechanism, and that this section [126] application ought to be deferred, to allow the Sheet Metal Workers to file a jurisdictional dispute, and if it should fail to do so, the applicant ought to be deemed to have abandoned its claim to damages in respect of the failure to hold the mark-up meeting.

37. The respondents asserted that the jurisdictional dispute is the appropriate mechanism for sev­eral reasons. First, the real dispute between the parties was the correctness of the work assign­ment, and that is precisely what jurisdictional disputes are designed to resolve. Second, a juris­dictional dispute would involve the participation of, and a decision would bind, all the interested parties, including the Iron Workers, which were assigned the work. Third, there are pre-hearing procedures, including pleading and disclosure requirements, that apply in jurisdictional disputes and which assist the parties and the Board in the resolution of these disputes. Those procedures are not part of a section [126] proceeding. Fourth, the Board has expanded powers under the provisions of section [93] which are not available to it in a section [126] application, but which are necessary and appropriate in order to reach a true resolution of a work assignment dispute. Hydro/EPSCA also submitted that the jurisdictional dispute was more appropriate because the evidence that would be led to determine the chances of the Sheet Metal Workers having received the assignment after a mark-up meeting would be substantially the same, if not identi­cal, in both the section [126] remedial hearing and in the jurisdictional dispute. It made no sense, it was submitted, to have two proceedings continuing with similar evidence.

38. But what is the appropriate procedure for litigating the question of damages? Approxi­mately nine months have passed since the filing of the section [126] application. No jurisdic­tional dispute complaint has yet been filed by any of the interested parties. Both unions have indicated that they are not interested in and are not intending to file a jurisdictional dispute. The breach for failure to hold the mark-up meeting was agreed to at the hearing on June 20, 1991, and reflected in the Board's decision of July 16, 1991, approximately three months prior to the instant hearing. No jurisdictional dispute was filed in this interval. Damages can arguably flow from the breach so found. While there could be a substantial overlap between the evidence in a jurisdictional dispute, involving the correctness of the particular work assignment, and the evidence with respect to the damages for the failure to hold the mark-up meeting, the issues in the two are not the same. The issue before us is to assess the loss, if any, that the applicant suf­fered because the required mark-up meeting was not held. This involves determining, on the balance of probabilities, what assignment the employer would have made had a mark-up meet­ing been held. That is not the same as the issue in a jurisdictional dispute, determining the cor­rect assignment in all the circumstances. Even if a jurisdictional dispute complaint did determine that Hydro made the correct assignment, damages still might flow to remedy its breach of the collective agreement, its failure to hold the mark-up meeting. And the fact remains that no jur­isdictional dispute has been filed, although there has been considerably more than ample time for any of the parties to do so.

39. In these circumstances, we are not prepared to defer this section [126] proceeding, insofar as it relates to the mark-up meeting. If any of the parties had wanted to file such a dispute, they could have and should have done so long before now. To now defer the section [126] application would only serve the purpose of further delaying the section [126] application. We are also loathe to encourage the filing of a jurisdictional dispute, after such a long period, where none has been filed. These parties, for their own purposes, have each chosen not to file a jurisdic­tional dispute. They have each independently concluded that a jurisdictional dispute complaint, with its attendant costs and delays, is not the appropriate mechanism for resolving the dispute. There is no work assignment dispute that the parties have chosen to submit to a jurisdictional complaint resolution mechanism.

40. That is not to say that a work assignment dispute does not exist; indeed, the deferred part of the grievance is over the work assignment. It is only to indicate that to date the parties have not elected to have the Board resolve that dispute through a jurisdictional complaint. And as noted, the issues are not identical in the mark-up grievance and the work assignment dispute.. In these circumstances, we are unwilling to defer a section [126] application that is designed to expedi­tiously, and relatively inexpensively, resolve a dispute between parties in the construction sec­tor. We are not dealing with a situation where a jurisdictional dispute had been filed in a prompt fashion. In this respect, see the decision of the Board in Board proceeding #1578-91-G, August 28, 1991, unreported, the "Bendel" decision, and the decision of November 20, 1991, denying the request for reconsideration. In that proceeding, the Board deferred the section [126] appli­cation, pending the outcome of the jurisdictional dispute, which dispute had been filed prior to the filing of the section [126] application. That circumstance distinguishes the two scenarios.

41. Similarly, where matters are best resolved in the relatively quick and inexpensive sec­tion 126 application, the Board will continue to do so. Jurisdictional complaints should remain reserved for those areas of dispute between two or more trade unions, with respect to their work jurisdictions where each union has a credible basis on which to assert a claim for the work. Parties (whether the competing union, the general contractor, or the subcontractor, as the case may be) asking that the Board defer or adjourn the section 126 application must do more than simply claim that the work is or was properly assigned to the union that received it (the non-grieving union). They must also satisfy the Board that, the basis of their claim is sufficient to cause the Board to defer the section 126 application to the jurisdictional complaint procedure. Failing this, the Board may well decide that the section 126 application should proceed. There may also be other reasons that lead the Board not to defer, as evidenced by some of the cases cited above.

42. Again, this decision deals only with whether the Board has the jurisdiction to exercise its discretion under section 93, and not whether or how that discretion ought here to be exercised. In this respect, the parties have not had full opportunity to address this issue, nor the related issue of whether the matter is in any event inarbitrable. We do note that the intervener Labourers has apparently filed a jurisdictional dispute. This matter will be relisted before the instant panel to deal with the two outstanding issues noted above in this paragraph, and any other preliminary matters.

43. This matter is referred to the Registrar.