Ontario Allied Construction Trades Council v. Electrical Power Systems Construction Association, 1992 CanLII 6803

[1992] OLRB Rep. January 47

1586-90-G; 1587-90-G; 1887-90-U Ontario Allied Construction Trades Council; Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Applicants v. Electrical Power Systems Construction Association; Ontario Hydro, Respondents v. Labourers' Interna­tional Union of North America, Local 1059, Ontario Provincial District Council and its affiliated local unions, Intervener; Ontario Allied Construction Trades Council; Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Applicants v. Electrical Power Systems Construction Association; Ontario Hydro, Respondents v. Labourers' Interna­tional Union of North America, Local 1059, Ontario Provincial District Council and its affiliated local unions, Intervener; Ontario Allied Construction Trades Council; Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Complainants v. Electrical Power Sys­tems Construction Association; Ontario Hydro, Respondents v. Labourers' Inter­national Union of North America, Local 1059, Ontario Provincial District Council and its affiliated local unions, Intervener

BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: N. L. Jesin and L. Balanzin for the applicants; John C. Field and Peter Watson for the respondents; L. A. Richmond and J. MacKinnon for the intervener.

DECISION OF THE BOARD; January 23, 1992

1These matters are a complaint of unfair labour practice, in which the complainants allege that the respondents have violated sections 65 and 67(a) and (c) [formerly sections 64 and 66(a) and (c)J of the Labour Relations Act ("the Act"), and two referrals of grievances to arbitra­tion pursuant to the provisions of section 126 [formerly section 124] of the Act. The respondents, Electrical Power Systems Construction Association ("EPSCA") and Ontario Hydro ("Hydro") and the intervener, Labourers' Interna­tional Union of North America Ontario Provincial District Council and its affiliated local unions ("the Labourers") argue that the matters ought to be dis­missed or deferred on the basis that the complaint and grievances either do not establish a prima facie case, or constitute work assignment disputes which are more appropriately litigated in another forum.

2The complainant union submits that the Labourers do not have standing in these mat­ters. These issues were raised before the Board as preliminary issues on which we heard argument, and reserved our rulings. The Ontario Allied Construction Trades Council was represented at the hearing by counsel but takes no position on the preliminary issues.

Complaint Under Section 91 [formerly section 89]

3It is necessary to set out the particulars of the complaint and grievances in some detail. In late 1989, the Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598 ("Local 598" or the "Cement Masons") filed a grievance with respect to an assignment of work by Hydro at the Longwood Generating Station. The work involved dry packing, which was assigned to members of the Labourers. A jurisdictional dispute was processed in accordance with the Plan for Settlement of Jurisdictional Disputes in Washington ("the Plan"), resulting in an agreement between the Labourers' International Union ("the Labour­ers International") and Local 598 specifying, among other things, that dry packing is the work of the Cement Masons. It is alleged that at the time of this agreement, the parties also agreed that no grouting would be performed on the same job.

4Local 598 alleges that subsequent to this, a representative of EPSCA made statements to the effect that no Cement Masons should be employed on Hydro lines and stations projects, and that in the event the Cement Masons won jurisdiction over particular work, he would attempt to arrange for another form of work to be used instead or to persuade his superiors that the work was not required. The complaint alleges that, in response to the agreement under the Plan, the respon­dents decided to change the material to be used on the Longwood project from dry pack to grout, and assigned the grouting work to the Labourers.

5The complaint also states that other work has been performed by Hydro at the J. Clark Keith Generating Station contrary to the above agreement on dry-packing, and that the failure of Hydro to hold a mark-up meeting in respect of this work is related to its failure to recognize Local 598.

6In early 1990, Local 598 initiated a further jurisdictional dispute in accordance with the Plan, over the assignment of screeding and finishing to the Labourers at the Pickering Generating Station. This also resulted in an agreement between the Labourers International and Local 598, in which the parties agreed that screeding, straight edging, floating and finishing was the work of Cement Masons. It is alleged that in response to this agreement, the respondents re-assigned the screeding and finishing at Pickering to Cement Masons, but re-assigned other work involving the cutting of concrete joints to the Labourers.

7The complaint also states that the respondents assigned further screeding, floating and finishing work at Saunders Generating Station to the Labourers, although the Labourers were not present at the mark-up meeting.

8The complainants state that by their actions, the respondents have interfered with the administration of a trade union and with the representation of employees by a trade union, have refused to employ members of Local 598 and have discriminated against them in regard to employ­ment because they are members of Local 598, and have sought to compel employees to refrain from becoming or from continuing to be members of Local 598, all of which is in violation of sec­tions 65, 67(a) and 67(b) of the Act. The complainants request that the Board declare that the respondents have violated sections 65 and 67 of the Act, order the respondents to cease and desist from violating the Act as aforesaid, order the respondents to post notices detailing their violations of the Act, order damages flowing from the respondents' breaches of the Act, and order such fur­ther and other relief as may be appropriate.

Referrals of Grievances

9The grievance in Board File No. 1586-90-G ("the mark-up grievance") alleges that Ontario Hydro has violated the collective agreement between EPSCA and the Ontario Allied Con­struction Trades Council by failing to hold a mark-up meeting with respect to work at the J. Clark Keith Generating Station. The relief requested is a re-assignment of such work, and damages to Local 598 on behalf of its members.

10The grievance in Board File No. 1587-90-G ("the work assignment grievance") alleges that Ontario Hydro has violated the agreement by changing the work assignment with respect to the cutting of concrete joints at the Pickering Generating Station and requests as relief the assign­ment of this work to members of Local 598.

11The work assignment grievance was filed on June 21, 1990 and the mark-up grievance on August 20, 1990. Both were referred to the Board on September 18, 1990. The complaint under section 91 was filed on October 19, 1990.

Positions of the Parties

12As stated above, Local 598 objects to the Labourers having status in these proceedings. Early in the day, Local 598 raised a question as to the standing of the Labourers to even participate in the argument regarding a prima facie case, given that its standing had not been determined. The Labourers clarified that to the extent that it takes the position that the complaint should be dis­missed as disclosing no prima facie case, its argument is that the complaint is essentially a work jurisdiction complaint which ought to be litigated in a different forum. On this basis, the Board ruled orally that it was prepared to grant limited status to the Labourers, to present argument on the issue of whether we should hear the complaint and grievances, or defer or dismiss them on the basis that they constitute jurisdiction disputes. We reserved on the question of the Labourers standing on the merits, should the matters proceed.

13On the issue of the prima facie case, EPSCA and Hydro argue that all three matters before the Board are at root and in substance jurisdiction disputes. The complaint relates to a con­tention that the Labourers are being assigned work which Local 598 asserts is Cement Mason work. Both grievances ask as relief that certain work be assigned to members of Local 598. Coun­sel for EPSCA and Hydro referred to numerous documents relating to proceedings at the Plan. These documents were submitted to the Board by the Labourers, on agreement of EPSCA and Hydro. Counsel for Local 598 did not object to the introduction of the documents; however, he urged the Board, for the purposes of the decision regarding the prima facie case, to give primacy to the facts as pleaded in the complaint in the event of any inconsistency between the documents and the pleadings.

14Counsel for EPSCA and Hydro argues that the documents show that the dispute between the parties is essentially a dispute over work assignment. In his submission, the differ­ences between the parties over work jurisdiction have not been determined or resolved and Local 598 is seeking to have the Board deal with these differences under the guise of a complaint under section 91 and grievances. Among other things, the documents show that Local 598, through its international union, has initiated proceedings before the Plan disputing the assignment of the grouting work at Longwood Generating Station to the Labourers. This proceeding has been adjourned at the request of the Cement Masons.

15Counsel referred us to the following cases: Toronto Star Newspaper Limited, [1979] OLRB Rep. May 451; Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022; Ontario Hydro, [1985] OLRB Rep. Feb. 307; Labourer's International Union of North America, Local 183 v. International Union of Operating Engineers, Local 793 Board File Nos. 3097-89-U and 3163-89-U, November 8, 1990, unreported; Ontario Hydro, Board File Nos. 2793-83-M and 2794-83-M, March 27, 1984, unreported; Pre-Con Company, a Division of St. Marys Cement Limited, [1981] OLRB Rep. July 947; Napev Construction Limited, [1982] OLRB Rep. Jan. 79; Napev Construction Limited, [1979] OLRB Rep. Sept. 886; Silverwood Dairies Limited, [1981] OLRB Rep. Nov. 1624; Beer Precast Concrete Limited, [1968] OLRB Rep. Sept. 619; Gambin Brothers Limited, [1968] OLRB Rep. Aug. 494; Petro-Canada Products and Energy and Chemical Workers Union, Local 593, unreported decision of Arbitrator Paula Knopf dated Janu­ary 24, 1990.

16Counsel for the Labourers submitted that the law before the Board is that where the facts giving rise to a proceeding are essentially a dispute over the assignment of work or work juris­diction, the Board will require the parties to have that issue determined by the tribunal provided for in a collective agreement, or under section 93 [formerly section 91] of the Act. The Board has not allowed a complainant to come to the Board under other provisions of the Act in such a case, even if those other provisions are arguably applicable. In Beer Precast Concrete Limited, sup ra, for example, the allegation was that the employer had wrongfully terminated the employment of a member of a trade union, thus committing an unfair labour practice. The Board found that as the real problem in the complaint was a jurisdiction or work assignment dispute, any remedy against the respondents was by way of a work assignment complaint under the Act.

17In Toronto Stars Newspapers Limited, supra, the Board found that a bad faith bargain­ing complaint was really a dispute over work jurisdiction which ought to be resolved through the work assignment complaint provisions under the Act. In Silverwood Dairies Limited, supra, the Board "converted" a complaint under section 91 of the Act alleging violations of sections 3, 65, 67 and 68(1) [formerly section 67(1)] into a proceeding under section 93 where the complaint con­tained all the elements of a jurisdictional dispute, and all necessary parties were present at the pro­ceeding. In Ontario Hydro (1985), supra, the Board found no prima facie case in a complaint of violations of sections 49, 50, 65, 67, 68 and 71 [formerly sections 48, 49, 64, 66, 67 and 70] of the Act where in its view, the dispute was about the overlap in work jurisdiction between two unions and not with respect to bargaining rights.

18Counsel submitted that even if all a union seeks is to have the Board apply and enforce a decision of record, the Board has deferred to jurisdictional dispute resolution procedures. In Ontario Hydro (1984), supra, the collective agreement specified that the work jurisdiction of the union would be that established by, among other things, "decisions of record". The grievance filed alleged that Ontario Hydro violated the agreement by failing to make an assignment of work in accordance with a 1926 decision of record. The Board declined to hear the grievance, stating that it would not permit a union to use section 126 proceedings to obtain, in the context of a grievance with clear jurisdictional overtones, an interpretation by the Board of a decision of record with a view to binding the employer to that interpretation in all future work assignments.

19In the present case, counsel submits, even if the facts pleaded in the section 91 com­plaint are true, the complainant ought to enforce its work jurisdiction by bringing a complaint under section 93, in which decisions of record or settlements between the parties will be taken into account by the Board in determining the appropriateness of an assignment. The Labourers ask that we terminate or defer the present proceedings without prejudice to the right of Local 598 to bring a complaint to the Board under section 93 or pursue the matter under the Plan.

20Local 598, on the other hand, submits that although there have been issues of work jurisdiction between the parties, in fact these issues have been determined. The issue which Local 598 now wishes to place before the Board is to what extent these determinations can be enforced. Counsel states that from 1989 forward, when issues of work jurisdiction arose, Local 598 followed the procedures available to it for determination of these issues. Each time Local 598 gained a determination which was favourable to it, EPSCA and Ontario Hydro have tried to circumvent these decisions, by changing the work method, by taking away other work from the Cement Masons, or by simply ignoring the decisions.

21In the submissions of counsel, Local 598 is not seeking to litigate issues of work jurisdic­tion. To the extent that such issues have already been determined in another forum, they are sim­ply attempting to have the respondents abide by the decisions. Counsel states that if the Board decides ultimately that the issues of work assignment have not in fact been resolved, then the com­plaint will not have been made out. In any event, this Board need not decide any issues of work jurisdiction in order to hear the section 91 complaint. To the extent that there may still be issues of work jurisdiction outstanding, it is submitted that these are not relevant to the section 91 com­plaint. For instance, Local 598 does not dispute that there may be an outstanding dispute with respect to the work jurisdiction over grouting at the Longwood site, which has been referred to the Plan. However, counsel submits that the appropriateness of that assignment of work is not the issue under the section 91 complaint. Rather, the issue under the section 91 complaint is that the work method was specifically changed from dry packing to grouting in order to avoid a decision under the Plan. If the complaint is upheld, then regardless of the proper work jurisdiction, Local 598 has a claim to damages based on a violation of the Act.

22At the conclusion of the day's argument. counsel for Local 598 sought the Board's leave to amend the complaint under section 91 to add section 93(14) of the Act. This section reads:

93.-(14) The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and the trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of the tribunal.

The Board requested written submissions from the parties in view of the hour. By letters dated November 5 and 22, 1991, counsel for Local 598 repeated the request, stating that it is not seeking by this amendment to add any particulars or change the substance of its complaint. Rather, Local 598 will rely on the particulars as already set out in the complaint, to support an allegation that EPSCA and Hydro have also violated section 93(14). Counsel states that there is no prejudice to the amendment so long as the opposing parties have an opportunity to respond.

23EPSCA and Hydro respond that Local 598 ought not to be permitted to amend its com­plaint at this stage of the proceedings. They submit that a complaint under section 93(14) raises an entirely different complaint, and as such should be the subject of a separate application. Counsel states that parties have fully argued preliminary objections with respect to the existing complaint and there is thus no issue of an opportunity to respond to the amendment. The Labourers, like­wise, object to the amendment. Counsel states that the Labourers' position on the preliminary matter and its conduct at the hearing on November 1, 1991 were based on the complaint as filed in October of 1990. He argues that the request to rely on section 93(14) of the Act creates an entirely different complaint than the one alleged. Counsel also states:

We have argued that the complaint is essentially jurisdictional in nature and ought to be dealt with as a jurisdictional dispute. The complainant's request to rely on 91(14) [now 93(14)] dem­onstrates beyond question that our preliminary objection is valid, and the particulars relied on in the complaint constitute a jurisdictional dispute which ought to be dealt with under section 93 of the Act or the collective agreement. If the Complainant had originally relied on section 93(14) of the Act, the argument, the admission of evidence, and the reply of the Intervener would have been completely different. It would not have been necessary to spend the entire day arguing whether the matters were essentially jurisdictional in matter since reliance on Section 93(14) would have been ample proof of the fact. Accordingly, the entire subject matter of the hearing would have been different, and the agreement with respect to evidence would have been different to correspond with the different argument. The effect of allowing the amendment at this stage of the proceedings is to create an entirely new case to the prejudice of our client.

There is no reason for the Complainant to wait until the last minute of the hearing to amend a complaint filed more than a year earlier, and after all pre-hearing matters had been addressed. The effect of allowing the Complainant to amend the complaint at this stage, is to turn the entire hearing of November 1st into an academic exercise. If we are now required to meet an entirely new complaint which contains an allegation respecting Section 93(14), then we would require that the entire hearing commence de novo and the complainant be required to pay all of our client's considerable costs to date.

It is our position that to allow the amendment is to prejudice our client and to essentially change the ground rules under which the hearing of November 1st was conducted. Accordingly, we request the Board to exercise its discretion and decline to allow the Complainant to amend its complaint at this date. In the alternative, if the Board does decide to allow the Complainant to amend, we request that the Board schedule new hearings de novo and destroy all notes and exhibits filed to date, and order the Complainant to pay all costs of the Intervener to date.

Decision of the Board: I - The Complaint Under Section 91

24In addition to the cases cited by counsel, this Board has dealt with similar issues on many occasions. Recently, the Board reviewed some of its jurisprudence in this area in Peter Kiewit Sons Co. Ltd., [1991] OLRB Rep. July 881. That case involved an application for certifica­tion by the Labourers' International Union of North America, Local 837 ("Local 837"), who were seeking to displace the bargaining rights of the United Brotherhood of Carpenters and Joiners of America, Local 38 ("Local 38"), and a complaint of unfair labour practice by Local 38 against Local 837 and the employer. The application for certification was made in the context of unsuc­cessful attempts by Local 38 to secure a first collective agreement. The complaint alleged that the employer and Local 837 were conspiring to undermine the bargaining rights of Local 38.

25The Board dismissed the section 91 complaint as disclosing no prima facie case. The

Board stated:

4....

The key point as the Board continues to see it is that at root in the complaint is the employer's assignment of work, and if the employer has indeed changed its own prac­tice with respect to the manner in which it chooses to get certain work done, that obviously is a factor that the dispossessed Union is able to rely upon in any jurisdic­tion at claim to be determined by the Board. But beyond that, an employer "prefer­ence" of one union over another is exactly what jurisdictional-dispute proceedings tend to be all about, and there is nothing unusual in an employer putting forward con­siderations of economy, efficiency, or any other grounds of such nature, for however far such factors on a given set of facts may ultimately take the employer. Similarly, the Board has never suggested that a trade union commits an unfair labour practice by seeking the inclusion of terms in its own collective agreement designed to enhance its position from a "jurisdictional" point of view, and that is hardly something new to the construction industry, as the Carpenters' well know.

26However, the Board also recognized that there might be circumstances in which a work jurisdiction dispute becomes intertwined with the future of a union's bargaining unit, and where the Board will exercise its jurisdiction to remedy an unfair labour practice:

5. On the other hand, positions taken by an employer in the bargaining between itself and the complaining Union may well be considered by the Board to fall within its scope of review under section 15 of the Act, which enshrines the duty to bargain in good faith. Certainly the Board would have concern over the refusal of an employer in Kiewit's position to bargain towards a collective agreement at all - for example, on the grounds that it at the time employed no employees which fell within the scope of the union's bargaining rights, and did not foresee a change in that. But on the pleaded facts and documents, that is not, at least by the time counsel were involved, what hap­pened here, and the Carpenters' Union brought no complaint under section 15 of the Act alleging that it did. Beyond that stark example, however, the Board as a practical matter has also recognized, particularly in dealing with "craft" unions, the area of overlap between work jurisdiction and the future of a union's bargaining unit, and the Board has responded to its role under section 15 of the Act to prevent an employer from pressing to impasse a demand which would be tantamount to asking a union to "shoot itself in the foot" with respect to its chances subsequently of being able to suc­cessfully mount or defend any jurisdictional claim to the work.

6. That is what the "second" Toronto Star Newspapers Limited case, relied upon by the Carpenters' and reported at [1979] OLRB Rep. August 811, decides - and that is all that that case decides. In that case, the Board had already dismissed a previous "un­fair labour practice" complaint on the grounds quoted above.

7. On the section 15 aspect of the complaint, however, the Board in this second decision noted as well from the earlier decision:

5.........

In dismissing the complaint on the basis set out above the Board was care­ful to point out in the final paragraph of its decision that its conclusion did not mean that the Star and the sterotypers could use the negotiation pro­cess to weaken the photoengravers' claim to the work in question. The Board stated unequivocally at paragraph lb that:

"Local 35-P (photoengravers) is entitled under section 81 of the Act to have its claim to the work in question dealt with on its merits. Accordingly, any attempt to circumvent the jurisdictional dispute procedures of the Act by either the Star or Local I in their bargaining would be inconsistent with the Act and would amount to a breach of the duty to bargain in good faith."

Focusing then on the bargaining between the employer and the complainant Union, the Board went on to conclude as follows:

18. The fact situation before this Board is substantially different than that upon which the Board dismissed the earlier section 14 [now 15] complaint. Since the issuance of the Board's earlier decision the Star has amended its posi­tion so that it no longer seeks a discretion in respect of work assignment but rather is attempting to alter the work description in the collective agree­ment. All other matters have been tentatively settled so that work jurisdic­tion remains as the only matter in dispute and the Minister has issued a "no board" report so that the parties are currently in a legal strike/lockout posi­tion. In addition the Star has negotiated a tentative settlement with the sterotypers which includes a work description which overlaps with that found in the expired photoengravers' collective agreement. It is against these critical facts that this panel must decide if either or both of the respondents have violated section 14 of the Act.

19. Both respondents rely in large measure on the legality of the work assign­ment agreements previously negotiated by the parties and argue that if such agreements are legal within the framework of the Act it cannot be illegal to bargain for them. This argument is sound in so far as it goes. The respon­dents, however, ignore the fact that the negotiations between the Star and the photoengravers have reached an impasse over this very issue and that a strike or lockout is now imminent. Clearly there is nothing unlawful about attempting to work out an agreement between interested parties and indeed, such agreements are contemplated under the Act and the parties are to be encouraged in this regard. In this round, however, in contrast to the last round of negotiations, the Star and the photoengravers have not been able to reach a voluntary agreement. It is clear that if the work description is to be altered it will be as a result of economic leverage. The Board must assess the bargaining between the parties in light of this fact and in light of the provisions of section 81 of the Act.

20. In view of the express provisions in section 81, respecting the resolution of jurisdictional disputes, are the parties free to resort to economic conflict to settle these matters, and can a party be bargaining in good faith if it presses the issue to an impasse and precipitates a strike? The answer must be no. It is inconceivable that the Act would contemplate resort to strike or lockout in support of a work assignment objective which could properly be made the subject matter of a section 81 complaint upon the actual assignment of the work. If such were the case the strike/lockout would be a tenuous and perhaps fruitless exercise in that the Board, on any subsequent application under the section, would be required to assess the merits and could decide the matter independently of the results achieved by use of what might have been a prolonged and costly economic struggle. The work assignment agreement thus achieved, in contrast to the other terms of settlement, would be subject to review and possible alteration by the Board. Under the section the Board may make its determination notwithstanding the work assignment provisions of any collective agreement and, in appropriate cir­cumstances, can even "rewrite" those provisions. In a general sense then it can be seen that bargaining issues relating to work jurisdiction which could be made the subject of a section 81 application do not easily fit within the process of free collective bargaining and enforceability as established under the Act. More specifically, the broad interim powers given the Board under section 81(8) to deal with work jurisdiction complaints where a strike is imminent underscores the qualitative difference between work jurisdiction and the usual subject matters giving rise to strike or lockout. If a strike is imminent because of a bargaining demand for a work assignment involving work being done by another union it can be met with a section 81(8) com­plaint and in response the Board may issue an interim order which removes the work jurisdiction issue from the realm of bipartite economic struggle and paves the way for a hearing on the merits involving all interested par­ties. On its face then section 81 qualifies the union's right to strike and pre­vents the development of a situation in which the assignment of work will be determined by the relative economic strength of either of the competing unions or the employer.

21. In this case it is the Star which is attempting to force acceptance of an arrangement other than the status quo as embodied in the previous collec­tive agreement and in so doing is requiring the photoengravers to possibly prejudice their position in any subsequent section 81 proceedings. Indeed, the Star maintains in its representations that if an agreement is achieved through the use of free collective bargaining a potential jurisdictional dis­pute will be effectively disposed of. In its earlier decision the Board stated that neither the Star nor Local I (sterotypers) could use the negotiation process to weaken the photoengravers' claim to the work in question. The Star, however, has ignored the caution contained in the Board's earlier decision and has misused the bargaining process by pursuing its demand to a bargaining impasse. The photoengravers have refused to voluntarily alter the existing agreement and accordingly, the Board hereby finds, in the face of a bargaining impasse, that the refusal of the Star to withdraw its demand without prejudice to whatever position it might take in any subsequent sec­tion 81 complaint, constitutes a violation of the duty contained in section 14 [now section 151 of the Act.

[emphasis added]

27As stated above, in Peter Kiewit, the Board dismissed the section 91 complaint. No complaint under section 15 of the Act and no application for a first contract had been made by Local 38.

28In most cases where this Board has deferred proceedings under other sections of the Act to the provisions of section 93, it has been because the essence of the issue was found to be a complaint that an employer had assigned work to the members of one union, in preference to the members of another. Work assignment complaints and complaints about bargaining rights are not, of course, discrete packages, and even where a section 91 complaint contains elements of both, the Board has deferred to section 93. However, as outlined in Peter Kiewit and illustrated by the "sec­ond" Toronto Star Newspapers Limited case, there will also be other circumstances where this Board will exercise its discretion to hear the complaint under section 91 in order to protect rights under the Act. Which approach is taken in each case depends on the extent to which the issues raised extend beyond work assignment complaints and clearly bring into play other policies and rights under the Act.

29In our view, the facts of the present case are distinguishable from the cases in which this Board has chosen to defer a section 91 complaint to section 93 of the Act. What is asserted here is that the parties have been involved in work assignment disputes, and have followed the mechanism provided for under the collective agreement for resolution of these disputes. Local 598 alleges that following such resolution, EPSCA and Hydro have refused to comply with the results. Local 598 alleges that the respondents have employed various unlawful means to avoid following the deter­minations on work jurisdiction.

30The course of dealing outlined in the complaint distinguishes this case from the ones cited above in which the complaining union is unhappy about a specific work assignment or, as tn Ontario Hydro (1985), supra, a specific statement by the employer as to a future intended assign­ment. In those cases, the complaining union had the option of challenging the work assignment through the procedures available to it for resolving work disputes. Likewise, in Ontario Hydro (1984), supra, the employer's alleged failure to comply with a Decision of Record could be chal­lenged through the mechanism for resolving work assignment disputes. In none of those cases was the basis of the complaint an allegation that the employer repeatedly refused to apply a determina­tion of work jurisdiction to the very work which was in dispute under the determination. Further, none of these previous cases involve allegations that an employer changed the method of work, or re-assigned other work, in order to undercut a determination of work jurisdiction.

31The result is that, in our view, the determination of the merits of this complaint does not require the Board to engage in a determination of work jurisdiction. To the extent that Local 598 complains that the Labourers are employed in grouting work for the employer, the basis of the complaint is not that the work ought to have been assigned to Local 598, but that the employer changed the method of work to avoid assigning dry-pack to the Cement Masons. In fact, Local 598 does take issue with the assignment of grouting to the Labourers; however, as all parties indicated, this dispute is before the Plan for resolution. The success of the complaint under section 91 does not depend on a resolution of this dispute in favour of Local 598. To the extent that the complaint is about concrete cutting, the allegation is that the employer re-assigned this work to the Labourers after it was forced to assign other work to the Cement Masons under a decision of the Plan. In this as well, the merits of the complaint do not raise the issue of the appropriateness of the assignment to the Labourers, but only the motivation behind it.

32Assuming the pleadings to be true, it seems to us that there is good reason for the Board to inquire into the complaint. If, as alleged, the respondents refuse to recognize determina­tions under the Plan with respect to work jurisdiction, and seek to find ways to avoid them, it is plausible to us that the real issue may not be work jurisdiction, but the rights of Local 598 under the Act. If so, it would be reasonable to expect that a complaint under section 93 or under the dis­pute resolution mechanisms of the collective agreement will not deal adequately with this issue. A work assignment proceeding could result in a resolution of appropriate work assignment without ever addressing the issues raised by Local 598 in the complaint under section 91. For instance, grouting work may well be labourers' work. In a jurisdiction dispute, Local 598 will not be able to litigate its allegation that but for the respondents' unlawful conduct, no grouting work would have been done.

33We do not doubt that there is potential for some overlap between the matters raised in the section 91 complaint, and a work jurisdiction complaint. For instance, this Board may have to determine the scope of the Plan's decisions on the work which was in dispute to determine whether, as is alleged, there has been a failure to comply with them. Thus, in the course of adjudi­cating the complaint, the Board may have to interpret the decisions, and inquire into the nature of the work done by the employer subsequent to the decisions. There is, however, a significant differ­ence between interpreting and applying a determination to what is alleged to be the very work which was the subject of the determination, and engaging in the much broader inquiry under a sec­tion 93 complaint. Where it is asserted that the parties in fact have sought and obtained a determi­nation of a work jurisdiction dispute, it is unclear what policy reason exists to having them go through the same exercise again, either under section 93 or the Plan.

34We therefore dismiss the preliminary motion regarding the section 91 complaint.

II - The Grievances

35As outlined above, the two grievances which have been referred to the Board for arbi­tration relate to an alleged failure to hold a mark-up meeting at the J. Clark Keith Generating Sta­tion, and an alleged change of work assignment involving the cutting of concrete joints. The rem­edy requested under both grievances is a re-assignment of the work to members of Local 598. Additionally, the mark-up grievance requests damages on behalf of Local 598 members.

36The events which are the subject of these grievances also form part of the section 91 complaint. In the complaint, Local 598 alleges that the failure to hold a mark-up meeting, in con­travention of the collective agreement, is related to the failure by the respondents to recognize Local 598. The complaint also alleges that the re-assignment of the cutting of concrete joints to the Labourers was the respondents' response to a work jurisdiction determination which gave other work to Cement Masons.

37EPSCA, Hydro and the Labourers submit that the grievances ought to be dismissed or deferred by the Board, since they are in substance work assignment disputes. They emphasize that the remedy requested in both grievances is the re-assignment of work.

38The Board dealt with similar circumstances in Schindler Elevator Corporation [1990] OLRB Rep. Oct. 1092, a case involving the same collective agreement as the one before us, and to which EPSCA and Hydro were also party. In that case, the grievance was based on an alleged fail­ure to hold a mark-up meeting. The remedy requested by the union was compensation for the loss. The intervener, International Union of Elevator Constructors, Local 50, EPSCA and Hydro argued that the Board ought to defer the hearing on the grievance, pending a resolution of a juris­diction dispute proceeding under section 93 of the Act. The Board agreed that the grievance raised an issue of work jurisdiction, stating:

18. ... We are satisfied that because the applicant and the grievance before us must establish a right to the work in question and a reasonable probability that it would have been awarded that work before it can obtain the damages it seeks, matters in issue in the grievance go beyond questions of collective agreement interpretation and have a substantial and proximate jurisdic­tional element and implications. A grievance which raises an issue of work assignment, even if only at the remedy stage, brings a dispute within the ambit of section 91 [now 93] of the Act.

39The Board then stated:

19. However, that substantial jurisdictional aspect does not arise, for practical purposes, unless and until the applicant has established that the respondents, or any of them, have breached the EPSCA agreement. It is unable to establish such a breach or, in the alternative, if it is unable to establish an entitlement to the damages it seeks, any determination of the jurisdictional question will be largely academic.

40Similarly, in the case at hand, we are of the view that although the mark-up grievance as stated clearly raises jurisdictional issues, these issues probably arise only if and when liability has been determined against the respondents and the Board is asked to award a remedy. We are satis­fied that, particularly in light of the section 91 complaint which contains overlapping issues, we ought to proceed to determine the liability issues, which do not depend on a determination of work jurisdiction.

41We therefore direct that the mark-up grievance be joined for hearing with the section 91 complaint. If liability under the grievance is established, we will hear the evidence and represen­tations of the parties as to whether the remedy requested by the applicant can be issued without engaging in a determination of work jurisdiction. If it cannot, this Board can decide at that time whether it ought to defer the decision on remedy pending the filing and resolution of a jurisdiction dispute complaint.

42The work assignment grievance is more troubling to us. More so than the failure to hold a mark-up meeting, the re-assignment of work is clearly a work jurisdiction issue. It is the type of issue which section 93 of the Act addresses and which the terms of this collective agreement appear to intend the Plan to resolve. For this reason, we decline to hear this grievance, preferring to allow the parties an opportunity to file a section 93 complaint or a complaint to the Plan. If no proceed­ing is filed within three weeks of receipt of our decision, any party may request the Board to re-list the grievance for hearing.

III - Amendment of Section 91 Complaint

43We turn now to the request by counsel for Local 598 to amend its section 91 complaint to add section 93(14) of the Act. The Board has a general discretion under section 83 of the Board's Rules of Procedure to grant leave to a party to amend a complaint, whether the request is made before or at the hearing. Among the factors which we view as relevant in deciding whether to grant leave are: the stage of the proceedings at which the request to amend is made, the prejudice to another party (in particular, whether the other party has an opportunity to present a case in response to the amended complaint), whether the amendment sought could be adequately dealt with in a separate proceeding, to what extent the amendment raises new issues and particulars, the reasons for the failure to plead the amended complaint originally, and our sense of the logic in hav­ing certain matters dealt with together.

44This list of factors is not exhaustive, but sketches out some of the considerations which we have applied in deciding the issue in this case. We have decided, in light of these consider­ations, to grant leave to Local 598 to amend its complaint. We do not agree with the submissions by counsel for EPSCA, Hydro and the Labourers that the amendment creates an entirely different complaint than the one alleged originally. In fact, in reviewing the particulars in the complaint, it is clear that the crux of the allegations is that EPSCA and Hydro have persistently refused to comply with determinations of work jurisdiction under the Plan. In the complaint as originally filed, the complainant seeks to have the Board determine whether this is true, and if so, whether the conduct of the respondent violated section 65 and 67(a) and (c) of the Act.

45Section 93(14) appears to direct parties to a collective agreement to abide by decisions of a tribunal to whom a work assignment dispute has been referred under the provisions of the agreement. Without wishing to give a precise interpretation of this section, it does not appear to us on a first reading to broaden the issues raised in this complaint. In fact, it may do no more than duplicate part of the complaint under section 65 and 67(a) and (b) wherein Local 598 complains of failure by the respondents to abide by work jurisdiction determinations.

46Both opposing counsel have suggested that Local 598 ought to file a separate complaint with respect to section 93(14) instead of being permitted to amend its present complaint. This does not seem to us to be a practical suggestion, since a separate complaint would cover many of the same issues as those already raised and would likely result in either a duplication of proceedings or consolidation in any event.

47With respect to the potential prejudice to the other parties, we note that Local 598 does not seek to add any new particulars. We will of course provide the parties with the opportunity to file amended pleadings in response to the amended complaint. However, counsel for the Labour­ers states that its position on the preliminary issue and its conduct at this day of hearing, including the agreement to admit certain documents, were based on the complaint as filed. Counsel asserts, in fact, that if the complaint had originally relied on section 93(14), the parties would have been saved the day of argument as to whether the issues are essentially jurisdictional in matter since reli­ance on section 93(14) would have been proof of that. Thus, counsel for the Labourers asks the Board to order the complainant to pay the costs of the Labourers of the proceedings to date (see para. 23 above).

48We do not agree with the submission that had Local 598 relied on section 93(14) when it first filed its complaint, we would have been spared a day of argument on the preliminary matters. We would not view reliance on section 93(14) as indicating from the outset that a section 91 com­plaint ought to be deferred. As in any case where a party asks us to decline to hear a matter the Board should carefully scrutinize the real issues before deciding that a complainant ought to be deprived of the opportunity to have its case heard. Given the issues raised in the complaint and the position taken by Local 598 during its argument, it seems highly unlikely that it would have con­ceded to defer the section 91 complaint to a jurisdiction dispute proceeding. Further, as we have noted above, the addition of section 93(14) to the complaint requires no new particulars, but is based on those facts as already set out. Thus, the argument regarding deferral would have been made along the same lines, as would have our assessment of the matter. We agree that in some cir­cumstances, an amendment made after preliminary motions have been argued and before evidence commences, may prejudice parties where the positions taken on the preliminary matters may be affected. In this case, and based on the submissions of the parties, we do not see this prejudice as a real possibility.

49With respect to the agreement to introduce certain documents, our decision on the pre­liminary matters does not rely on any of the documents filed. Our decision is based on an assump­tion that the facts as contained in the complaint are true. Although counsel for Local 598 did not object to the documents being submitted to the Board, he specifically request.ed that in case of conflict between these and the pleadings, and for the purpose of the argument on the prima facie case, that the Board assume the complaint to be accurate. In light of this limited agreement, and the objections raised to the intended amendment, the Board will require any party who wishes to rely on the documents during the hearing into these issues to prove them in the usual way.

50We do have some questions as to why section 93(14) was not raised until the first day of the hearing into the complaint, particularly when the issues were known to the complainant from the beginning of this process. Indeed, we have some questions as to why section 93(14) was not raised until the end of that day's argument. By this decision, we do not intend to encourage coun­sel and parties to file complaints which evolve over time and become a "moving target" for the other parties. In other circumstances, we may have been inclined to refuse the request to amend. In this case, however, the parties have all been aware of the substance of these matters well before the commencement of the hearing. For all of the reasons given, we will allow the section 91 com­plaint to be amended. We are of the view that it makes practical sense to have all these issues brought before the Board to be heard together.

IV - Standing of the Labourers

51As stated above, the Labourers request that they be given status in the current proceed­ings, a request which is opposed by Local 598. Counsel for the Labourers argued that the Labour­ers are an affected party which by law ought to be entitled to participate in these hearings. In addi­tion to the cases cited above, counsel referred us to C.U.P.E. v. Canadian Broadcasting Corp. (1990), 1990 CanLII 8078 (ON CA), 70 D.L.R. (4th) 175 and Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43 (1989), 1989 CanLII 9416 (ON LA), 5 L.A.C. (4th) 404 (Stanley). In C.U.P.E. v. Canadian Broad­casting Corp., the Ontario Court of Appeal held that there had been a denial of natural Justice when an arbitrator made a decision concerning work assignment without giving notice of the pro­ceeding to the union which was opposed in interest. The court adopted what it called a "common­sense" approach, stating:

Continuing with a common-sense analysis, we have a two-party dispute in which the employer has limited interest and a third party's agreement has been interpreted, leading to an award that effectively directs the transfer of work assignments while the individuals who suffer are left to pursue grievances under their own collective agreements in hope of receiving a conflicting deci­sion.

52The court was of the view that the right to intervene in a proceeding ought not to be restricted to those parties with a strict legal interest. Counsel for the Labourers argues that the determination of the current complaint and grievances will directly affect the employment opportu­nities of members of the Labourers. If Local 598 is successful in the hearing, the result will be that the Labourers will not get the work in question. He referred us to the provisions in the collective agreement for resolution of work assignment disputes, under which all affected parties are granted status. In sum, counsel states that the Board ought not to treat what is essentially a three-party dis­pute as a two-party dispute, by denying status to the Labourers.

53Counsel for EPSCA and Hydro echoed the arguments above. In his submission, the Board ought to recognize the fact that the work assignment disputes which are the basis of the complaint and grievances have been referred to the Plan for determination. In those proceedings, all affected parties have an opportunity to make representations.

54Counsel for Local 598 argues that to the extent there existed three-party work assign­ment disputes, Local 598 has followed all the required procedures for having these resolved. Under those procedures, the Labourers had full opportunity to participate. The complaint, however, is about an allegation that the respondents simply do not want to have Cement Masons on Hydro sites. Counsel reiterated that the issues placed before the Board in these proceedings are not work assignment disputes, but the conduct of Hydro.

55We have decided to grant full standing to the Labourers in these proceedings. The Board has the discretion to grant status to an outside party where appropriate. Whether or not the Labourers can be said to have a strictly legal interest in these matters we are of the view that it makes sense, in the context of this case, to have the Labourers participate. In the course of these proceedings, this panel may have to interpret decisions or agreements under the Plan in order to decide whether the respondents have failed to abide by them. The decisions or agreements were the result of a three-party process under the collective agreement which binds both unions. In our view, it would only be fair to allow the Labourers to participate in a proceeding in which a party seeks to enforce these decisions or agreements. Since we have decided that the section 91 complaint will be heard together with the mark-up grievance, the Labourers will be permitted to present evidence and make submissions on all issues under these proceedings.

56We therefore direct that the section 91 complaint (Board File No. 1887-90-U), and the referral of the mark-up grievance (Board File No. 1586-90-G) be listed for hearing together and that three days of hearings be scheduled at the outset. The Labourers shall have full standing with respect to all issues. The work assignment grievance (Board File No. 1587-90-G) is adjourned on the terms specified in paragraph 42 above, pending the filing of a complaint under section 93 of the Act or in accordance with the procedures under the collective agreement. We also direct that the respondents and the Labourers file their amended pleadings in response to the matters raised in the complaint and grievance by one week prior to the next hearing date.