Ontario Labour Relations Board
[1992] OLRB Rep. April 431
3256-91-G; 3540-91-G International Union of Operating Engineers and its Local 793, Applicant v. E. S. Fox Limited, Respondent; Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007, Applicant v. E. S. Fox Limited, Respondent
BEFORE: Jules Bloch, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Bernard Fishbein, Joseph Kennedy and James Anderson for the applicant, International Union of Operating Engineers and its Local 793; David Watson and Ron Coltart for the applicant, Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007; W. J. McNaughton and M. Whittaker for the respondent; A. J. Ahee and Ed Nicholas on behalf of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 666 seeking intervener status.
DECISION OF THE BOARD; April 9, 1992
1The Board orders that Board File No. 3540-91-G and Board File No. 3256-91-G be heard at the same time. Both cases involve a referral of a grievance pursuant to section 126 (formerly section 124) of the Labour Relations Act. The applicant Millwright District Council of Ontario (Millwrights) in Board File No. 3540-91-G and the applicant International Union of Operating Engineers and its Local 793 (Operators) in Board File No. 3256-91-G individually grieve that the respondent (E.S. Fox) has failed to abide by their respective province-wide collective agreements by failing to employ members of their respective unions. E.S. Fox replied that their Marine Division was performing work on a cargo vessel, owned by St. Mary's Cement. The Marine Division of E.S. Fox was performing this work pursuant to collective agreements with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 666 (U.A.) and the International Brotherhood of Electrical Workers, Local 303 (IBEW). The IBEW, sent correspondence to the Board, expressing its desire not to participate in the grievances. The U.A. attended at the hearing and submitted that it should be given intervener status in both grievances.
The parties asked the Board, prior to dealing with the merits of the grievances, to rule on two preliminary matters:
Does the Board, pursuant to its section 126 power have the jurisdiction to hear grievances which, do not deal exclusively with work performed in the construction industry?
Should the U.A. be allowed to intervene, in a grievance pursuant to section 126, in a situation where it has not filed, and has not expressed an intention to file a Jurisdictional Dispute?
2With respect to the first preliminary matter, Counsel for the respondent asked the Panel to reverse previous Board jurisprudence wherein the Board has found that section 126 encompasses any grievance arising out of any collective agreement between a construction industry trade union and a construction industry employer. Counsel for the respondent submits that in this case E.S. Fox is acting through its marine division, that refitting a vessel in "wet dock" is not construction, and consequently a construction employer doing work outside the construction industry should not be subject to the construction sections of the Act, when engaged in non-construction activities. The Board should reverse its course down the slippery slope of Babcock and Wilcox Canada Ltd. [1987] OLRB Rep. Aug. 1053; Babcock and Wilcox Canada Ltd. [1988] OLRB Rep. Dec. 1198; Ideal Railings Limited [1990] OLRB Rep. Dec. 1283.
3Counsel for the Operators argued that the Board must seize jurisdiction and then look at the collective agreements between the parties to see if the agreements cover the work in question. The Board should continue the "Babcock and Wilcox" line of cases because it makes good industrial relations sense. Counsel for the Millwrights agreed with counsel for the Operators. Counsel for the U.A took no position on this portion of the case.
4This panel adopts the reasons for the "Babcock and Wilcox" line of cases. The policy reasons for this line of cases was summed up by another panel in Babcock and Wilcox [1988] supra at paragraphs 6, 7 and 8:
In our view, the interpretation of section 124 suggested by the earlier panel is the correct one. It also makes the most 'industrial relations sense". It is often very difficult to distinguish "repair" which is specifically mentioned in the definition of construction industry (see section 1(1)(f) and "maintenance" which is not - although the practice in the construction industry is to accord them separate legal treatment even when the employees or required skills may be the same. Indeed, one set of functions will often be done in close cooperation or conjunction with the other, by the same tradesman, employing the same craft skills, tools and equipment. It would make for much mischief and procedural uncertainty if a simple problem such as the nonpayment of overtime had to be settled in two different forums at once, with the potential for conflicting interpretations of the collective agreement or contradictory notions about what is construction work and what is not. Furthermore, since the Ontario Labour Relations Board is responsible for interpreting and applying the special statutory framework applicable to the construction industry and, at the same time, is the designated arbitrator for collective agreements in that industry, it is both sensible and hardly surprising that section 124 is drafted broadly enough to encompass any grievance arising out of any collective agreement between a construction industry trade union and a construction industry employer. And it is the Board which has the exclusive jurisdiction to interpret and apply the complex statutory provisions which generally underlie construction industry collective agreements.
Does this literal application of section 124 to employers or trade unions which meet the literal terms of section 117 "open the floodgates" to claims that could not reasonably have been within the contemplation of the Legislature? Does it lead to anomalous results? We do not think so. Since unions which meet the test of section 117(f) are almost invariably craft unions confined to their historic craft units, it is most unlikely that they will have collective agreements entirely unrelated to their construction industry base. For example, it is unlikely that the Boilermakers' Union would find itself representing the clerical employees of a construction industry employer. But even if it did, what would be the result: access to an arbitration process which is far faster and cheaper than that contemplated by most "industrial" collective agreements, with the added advantage of a Board-appointed Labour Relations Officer to assist the parties to resolve their differences without recourse to litigation. Thus, the interpretation suggested by the earlier panel of the Board is not only attractive from the perspective of labour relations policy, but also provides aggrieved parties (employers or trade unions) with an expeditious and relatively inexpensive method for resolving their disputes. When weighed against the respondent's suggestion of bifurcated proceedings and potentially competing forums, we prefer an interpretation which makes section 124 available to any union or employer that meets the section 117 requirements - whether or not the work in question, or some of it, is properly regarded as "construction work". (See, generally, Caroll Electric (1982) Limited, [1983] OLRB Rep. Aug. 1282.)
We should make it clear, however, that in concluding that section 124 is broadly available to construction industry employers and unions, we do not decide whether any particular work falls within the ambit of those collective agreements, nor whether such agreements are confined solely to construction work. That is a matter of interpretation of the agreement itself, and lies at the heart of the matter currently before us.
The Board finds that it has jurisdiction pursuant to section 126 of the Labour Relations Act to hear the grievance.
5With respect to the other preliminary matter, Counsel for the U.A. submitted that the Marine agreement between the U.A. and E.S. Fox is an agreement of longstanding. It is a valid collective agreement. This grievance should be treated like a sector dispute. Since there is no provision under the Labour Relations Act for a sector dispute involving construction and non-construction work, the U.A. should be granted intervener status in both grievances.
6Counsel for the Operators relied on the legal maxim "Strangers to a collective agreement have no status to intervene in a private dispute between parties who have a collective bargaining relationship" In support of this maxim, counsel referred us to four cases. Napev Construction Limited and Vepan Leaseholds Limited [1976] OLRB Rep. March 109; Napev Construction Limited [1979] OLRB Rep. Sept 886; The Municipality of Metropolitan Toronto, [1986] OLRB Rep. April 574; Semple-Gooder Roofing Ltd.., [1983] OLRB Rep. Nov. 1908. Further he asserted that the Labour Relations Act itself provides for a mechanism to deal with a multi-party situation dealing with work assignments. If this is a case involving a dispute about work assignment then the parties could consent to adjourn the proceedings while the U.A. filed a jurisdictional dispute. Since the U.A. has not indicated that it intends to file a jurisdictional dispute, they can not be said to have a legal interest in these proceedings and therefore should not be granted intervener status. Further, there is no issue about proper notice because in law, a party that has no "lis" is not entitled to notice. Counsel for the Millwrights agreed with the position of Counsel for the Operators.
7Counsel for ES. Fox argued that insufficient notice was given to the parties. Second, the cases referred to by Counsel for the Operators could be distinguished in that in this case the issue involves a determination about the nature of the work and consequently which collective agreement should apply (i.e. a construction collective agreement or a Marine Collective Agreement).
8The Parties did not make reference to Re Canadian Union of Public Employees and Canadian Broadcasting Corp. et al; National Association of Broadcast & Electronic Technicians, Intervener (1990) 1990 CanLII 8078 (ON CA), 70 DLR (4th) 175 a Court of Appeal decision which involved a Judicial Review of a private arbitration referred pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2, s.65(1). Two grievances were filed pursuant to two different collective agreements with the same employer concerning the same work assignment. The grievances were adjudicated upon by different arbitration panels. Each panel came to a different result about the work assignment. The employer relied on the decision which affirmed its work assignment. The Divisional Court found that the legal rights of the Unions and their members were not affected by the earlier award and that a failure to give notice to persons who were only "consequentially" affected by the award did not constitute a denial of natural justice.
9The Court of Appeal overturned the decision of the Divisional Court. The heart of the Court's decision can be found in this paragraph at page 177:
My thinking starts with a practical, common-sense compulsion to put all these parties in one room, before one tribunal, to obtain one ruling on their differences. Upon analysis I find that legal precedent supports this view.
The Court continued by saying, at page 179:
I only observe that there is no clear legislative path to resolution of these overlapping disputes though practicality in day-to-day labour relations demands that there be one.
10In Ontario, pursuant to section 93 (formerly section 91) of the Labour Relations Act, parties who wish to dispute work assignments which are ostensibly covered in overlapping collective agreements, can apply to the Board for a determination of the issues. In these types of proceedings all parties, claiming the work, are entitled to be involved in the hearing. These provisions in the Ontario Act distinguish the case before the Board from the Court of Appeal decision.
11Napev 2 supra, involved a complaint under section 112(a), now section 126. The applicants alleged that work which was theirs under their collective agreement had been assigned to another union. That union sought to be made an intervener to the applicants section 112(a) complaint. The Board found at page 888 that:
……the fact that a jurisdictional dispute has been alleged by the interveners does not, in our view, open the way for them to participate in a hearing on the merits of the grievance in that they still remain strangers to the alleged collective agreement. Although they may be incidentally or commercially affected by a determination as to the merits of the grievance that is not a sufficient basis to accord them status.
This rationale also applies to the case before us. On its face the grievances before us are the type that usually give rise to jurisdictional disputes. Consequently, for the U.A. to be given status in this case, a jurisdictional dispute must be filed. This is not a case where the Board should allow U.A. to intervene because of some special or exclusive knowledge that could help the Board in its adjudication. E.S. Fox clearly understands the case it must plead. Should it require the special or exclusive knowledge, if any, held by U. A it can summons the appropriate witness to bring that evidence before the Board.
12Having regard to the foregoing, the Board is satisfied that the U.A. has no legal right to participate in these proceedings and should not be given intervener status.
13This panel is not seized. The Registrar is directed to list this referral for continuation of hearing.