International Association of Bridge, Structural and Ornamental Ironworkers, Local 736 v. Ellis-Don Construction Ltd.

[1994] OLRB Rep. October 1071

2645-91-G International Association of Bridge, Structural and Ornamental Ironworkers, Local 736, Applicant v. Ellis-Don Construction Ltd., Respondent v. International Brotherhood of Painters and Allied Trades, Intervener

BEFORE: Jules Bloch, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

APPEARANCES: E. del Junco and Brian Doherty for the applicant; Walter Thornton for the respondent; J. James Nyman and George McMenemy for the intervener.

DECISION OF THE BOARD; October 2, 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 by the respondent and intervener to defer consideration of this application to allow the filing of a jurisdictional dispute pursuant to section 93 (formerly section 91) of the Act. On April 29, 1992, another panel of the Board found that the Board had jurisdiction to deal with this dispute as a jurisdictional complaint. At paragraph 10 of that decision the Board stated:

10. We do not propose to recite the jurisprudence dealing with this issue. For reasons similar to those expressed by the Board in the recent decision in Robertson Yates Corporation Limited (as yet unreported, April 21, 1992, Board File No. 1989-91-G, attached), the Board is satisfied that the facts do disclose that the applicant trade union is requiring the employer, in this case Com­mercial Glass and Aluminum, to assign particular work to it, rather than to members of the Painters union. We do not reach this conclusion because Ellis-Don was acting as agent for the Ironworkers when it passed the Ironworkers' grievance on to Commercial Glass, together with the instruction that Commercial Glass assign the work to members of the Ironworkers. Rather, because of the nature of the construction industry, as more fully expanded upon in Robertson Yates, supra, and the nature and purpose of the subcontracting clauses in agreements in the con­struction industry, we are satisfied that, the applicant union was demanding of the employer, although indirectly, that the work in question be assigned to its members, rather than to mem­bers of the Painters. The nature of the grievance itself was such a demand, and when it was passed on or communicated to Commercial Glass, in practical terms the demand was then being made of the employer, as well as of the general contractor.

11. The applicant, International Association of Bridge, Structural and Ornamental Iron-workers, Local 736 ("Ironworkers") has asked the Board to refrain from deferring the grievance between the respondent Ellis-Don Construction Ltd. (Ellis-Don) and itself on grounds that Ellis-Don is asserting that the intervener, International Brotherhood of Painters and Allied Trades (Painters), does not have bargaining rights with Ellis-Don. Further, the Ironworkers argue that because Ellis-Don and the Painters are said not to be in a bargaining relationship the Board should continue with the grievance and view it as a breach of the general contractors responsibility to sub­contract work to a subcontractor with a contractual relationship to the Ironworkers. Ironworkers counsel argues that section 1(5)(e) of the Ironworkers Collective Agreement includes all the work which would be the subject of a jurisdictional dispute. Further, he submits that a decision by the Board with respect to the breach of the collective agreement would not in any way impair the Board later making a decision about the assignment of work. In effect, the decisions about contrac­tual obligations can be made without in any way affecting decisions about work jurisdiction. Coun­sel for the Ironworker submits two cases for this proposition. The first Northdown Drywall & Con­struction Limited v. United Brotherhood of Carpenters & Joiners of America, Local 18; The Wood, Wire & Metal Lathers International Union, Local 562; Robertson- Yates Corporation Limited [1972] OLRB Rep. June 666 and United Brotherhood of Carpenters & Joiners of America, Local 785 v. Robertson-Yates Corporation Limited v. Labourers International Union of North America, Ontario Provincial District Council [1992] OLRB Rep. Apr. 507. In Northdown Drywall (supra) counsel for the Ironworkers relies on paragraphs 4 through 6 of that decision. In that case the Board was asked to sort out the inconsistent contractual arrangements of the general contractor. The Board was not asked to sort out which of the two unions had the better claim to the work at hand. If in that case a choice had to be made about work jurisdiction, rather than attempting to absolve the contractor of contractual decisions that it made, then surely the Board, in that case, would have allowed for a jurisdictional dispute to take place. The second case, that counsel points us to, is a quote from Robertson Yates (supra) at paragraph 33 of the decision, which quotes from an unre­ported Ontario Hydro case. In that case the parties were dealing with damages which flowed from the failure to hold a mark up meeting. The Board held that it could determine the quantum of damages without actually determining whether the assignment in question had been correctly made. In effect, the Board in Hydro was asked to determine 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, which determines the correct assignment in all the circum­stances.

12. In the case at bar there is an intertwining of contractual matters with work assignment matters. If the Board were to find that Ellis-Don had properly assigned the work in question to the Painters then Ellis-Don might be successful in its defence of the grievance filed by the Ironwork­ers. In a jurisdictional dispute should Ellis-Don be found to have made an improper work assign­ment then the grievance would be brought back on and should the Ironworker win, damages for failing to subcontract to a company with contractual relations with the Ironworkers would be assessed.

13. All parties agree that save and except the bargaining rights issue, this would be a proper case for deferral, in that the work in dispute, on its face, is work that either trade has done. It is important to note that although Ellis-Don states that it has no bargaining rights with the Painters, the Painters have asserted that they have bargaining rights with Ellis-Don. The Ironworkers on the other hand have not argued against the Painters assertion. It would be impractical for the Board to allow this grievance to continue only to have the Painters assert their collective agreement rights and file a jurisdictional dispute. This would create a very cumbersome process whereby a grievance would be continuing at the same time as a jurisdictional dispute. The Board would be addressing overlapping issues in two separate forums. In this instance it seems like an unnecessary multiplicity of proceedings.

14. There is no reason why the jurisdictional dispute forum is not the proper forum to deal with a situation where a work assignment is given by a contractor to a trade with which it does not have a collective agreement. This is especially so when the trade, although without a bargaining relationship, has done the preponderance of the work in that Board area. (See United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Complainant v. Pigott Construction Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener # 1 and Labourers' International Union of North America, Local 506, Intervener #2 [1992] OLRB Rep. June 748 (Pigott 2).

15. For all the foregoing reasons we ask the Registrar to adjourn the grievance and list it with the pending jurisdictional dispute. Further we allow any party to file a jurisdictional dispute within fourteen days of the release of this decision. Should no jurisdictional dispute be filed within that time we direct the Registrar to relist the grievance.

16. This panel is not seized.