[1992] OLRB Rep. February 127
1770-87-JD Boise Cascade Canada Ltd., Complainant v. International Association of Machinists and Aerospace Workers, Lodge 771 and International Brotherhood of Electrical Workers, Local Union 1744, Respondents
BEFORE: Ken Petryshen, Vice-Chair, and Board Members J. Trim and H. Kobryn.
APPEARANCES: Peter J. Thorup for the complainant; L. A. Richmond for the Machinists and Aerospace Workers, Lodge 771; S.B.D. Wahl for the Electrical Workers, Local Union 1744.
DECISION OF THE BOARD; February 17, 1992
1This is a complaint under section 93 [formerly section 91] of the Labour Relations Act in which the complainant has requested the Board to issue a direction with respect to the assignment of certain work.
2During the last two days of hearing the Board entertained representations from the parties on certain motions made by the I.B.E.W. and reserved its decision on all but one of them. Our determinations of the motions are set out below.
3Counsel for the I.B.E.W. argued that the panel was compromised by Boise's conduct during the hearing of December 12 and 13, 1990 when Boise allegedly entered into settlement efforts before the panel. After entertaining this motion, the Board ruled orally at the hearing that it was not compromised by the events which occurred on December 12 and 13, 1990. In our view, Boise was not involved in settlement efforts before the panel at the hearing on those days.
4Counsel for the I.B.E.W. also argued that issues raised in this complaint were res judicata having regard to a previous Board decision in a jurisdictional dispute complaint involving the same parties. The Board is satisfied that the complainant should not be precluded from proceeding with this complaint since it would be inappropriate to apply the principles of res judicata in the circumstances of this case. In our view, it has not been established that the issues in this complaint, having to do with a particular assignment of work, are the same issues which arose and were decided in the previous complaint.
5Counsel for the I.B.E.W. also argued that the Board should not permit the complainant to amend its complaint in order to seek a remedy which would have an impact on the type of instrumentation work performed by the I.B.E.W.. The circumstances giving rise to this motion can be briefly stated.
6I.A.M. employees and I.B.E.W. employees perform instrumentation work at the complainant's pulp and paper mill at Fort Frances. The I.A.M. employees work on pneumatic instrumentation equipment while the I.B.E.W. employees work on electronic instrument equipment. In 1987, Boise assigned the instrumentation work previously performed by I.A.M. employees to I.B.E.W. employees. The I.A.M. employees also continued to perform the pneumatic instrumentation work. The I.A.M. grieved this situation and the Board has determined that I.A.M. made a demand to the complainant that the pneumatic instrumentation work be assigned to the I.A.M. employees and not to the I.B.E.W. employees. It was these events which led the complainant to file this complaint. The complainant requested in essence that the Board either assign all instrumentation work to the I.B.E.W. or alternatively that the Board direct that both I.A.M. employees and I.B.E.W. employees could be assigned pneumatic instrumentation work. The parties to the complaint recognized that it did not impact upon the I.B.E.W. jurisdiction over electronic work. On this basis, the I.B.E.W. discharged its counsel and had representatives attend the hearing essentially as observers.
7Near the completion of the examination-in-chief of its only witness, the complainant filed a document with the Board which in effect constituted a request to amend the complaint in order to place before the Board another remedial option. As another alternative, the complainant requested in essence that all instrumentation work be performed by both I.A.M. and I.B.E.W. employees. This was the first time in the proceedings that the jurisdiction of the I.B.E.W. over electronic instrumentation work became an issue. In his motion, counsel for the I.B.E.W. relied on a number of grounds in support of his position that the Board should not permit the complainant to amend its complaint to seek the further alternative remedy.
8Having considered the parties' submissions on this motion, the Board is satisfied that the I.B.E.W.'s position has merit.
9As noted earlier, what gave rise to this dispute was the assignment of pneumatic instrumentation work to I.B.E.W. employees and the demand of the I.A.M. that that particular work be assigned to its members. As a result of the demand for particular work by the I.A.M., the Board determined that it had jurisdiction under section 93 to entertain the complaint. Section 93(1) gives the Board a broad remedial authority "with respect to the assignment of work". We interpret section 93(1) as giving the Board the authority to only deal with the assignment of work for which a demand has been made. It appears that the assignment of electronic instrumentation work has been made only to the I.B.E.W. and that no one, including the I.A.M., has made a demand within the meaning of section 93 for electronic instrumentation work. Given the wording and intent of section 93, the Board does not have jurisdiction in these circumstances to make any directions with respect to the electronic instrumentation work.
10Even if the Board determined that it did have jurisdiction under section 93 in these circumstances to make directions with respect to electronic instrumentation work, it would not be inclined to permit the amendment having regard to the timing of the request. Allowing the amendment would fundamentally alter the nature of the complaint and the Board would have to direct that the case be re-tried. This case is well beyond the point where such an approach is reasonable.
11Accordingly, the Board will not permit the complainant to amend its complaint as requested. The hearing in this matter will continue on the dates previously scheduled.