[1992] OLRB Rep. February 121
1206-92-JD Ellis-Don Limited, The Jackson-Lewis Company Limited, Eastern Construction Company Limited and Konvey Construction Limited, Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 27, and Labourers International Union of North America, Local 183, Responding Parties
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
APPEARANCES: Joseph Liberman for the applicants; S. B. D. Wahl and T. Dionisio for Labourers, Local 183; and David McKee, Ucal Powell and Lorenzo Monaco for Carpenters, Local 27.
DECISION OF THE BOARD; February 11, 1993
This is a complaint concerning work assignment filed pursuant to the provisions of section 93 of the Labour Relations Act. The companies which are the original applicants in this complaint are Delta Catalytic Corporation, Ellis-Don Limited ("Ellis-Don"), The Jackson-Lewis ("Jackson-Lewis") Company Limited and Eastern Construction Company Limited ("Eastern"). Having regard to the agreement of the parties dated September 14, 1992 and filed with the Board, the complaint as against Delta Catalytic Corporation is withdrawn with leave of the Board. The title of these proceedings is thus amended to delete Delta Catalytic Corporation.
In its reply to this complaint, dated August 24, 1992, the United Brotherhood of Carpenters and Joiners of America, Local 27 ("the Carpenters") states that the jurisdiction over the work in dispute has been assigned to the Carpenters by virtue of an agreement between the Carpenters and the Labourers International Union of North America Local 183 ("the Labourers"). The Carpenters also state that they intend to request that the Board adjourn its proceedings under section 93 pending the disposition of private arbitration proceedings under the provisions of the agreement. On January 4,1993, the Board convened a consultation with respect to the complaint in accordance with section 93(1.1) of the Act. The parties agreed to request that the Board determine the issue raised by the Carpenters prior to proceeding with the complaint. The Board heard the parties' submissions with respect to the request to defer the proceedings. The Board also heard submissions as to how this complaint should be dealt with by the Board if it were not deferred, and reserved its decision on all issues canvassed.
The Board was also informed during the course of the day that the complaint with respect to Konvey Construction has been settled by the parties, subject to final review of the terms of the Minutes of Settlement by counsel for Konvey. On this basis, the Board did not hear any submissions with respect to the further processing of this complaint. The Board directs the parties to notify the Board in writing by no later than March 12, 1993 whether this matter has been settled and if not, what the parties submit should be the course of action with respect to this complaint.
With respect to the complaints remaining, involving Ellis-Don, Jackson-Lewis and Eastern, the parties have agreed that these matters should be dealt with by the Board together. There is no dispute that the provisions of section 93, as they have been amended, apply. Counsel for the Carpenters terms the Carpenters' position as a request that the Board issue an interim order under section 93(1.2) deferring this complaint until the disposition of the private arbitration.
Background of the Dispute
The complaint concerns concrete forming work which has been subcontracted by Ellis-Don, Jackson-Lewis and Eastern. Ellis-Don is the general contractor in connection with the Metro Hall Project in downtown Toronto. Ellis-Don has subcontracted concrete forming in relation to an outdoor seating area, a retaining wall and planters and other decorative forms to a landscape subcontractor, which has in turn assigned the performance of this work to members of the Labourers. The Carpenters filed a grievance against Ellis-Don with respect to this subcontract on November 6, 1991. Jackson-Lewis is the general contractor with respect to the construction of the Hewlett-Packard head offices in Mississauga. Jackson-Lewis has subcontracted concrete forming in relation to outdoor planter boxes to a landscape subcontractor, which has also in turn assigned the performance of this work to members of the Labourers. The Carpenters also filed a grievance with respect to this, dated April 21, 1992. Eastern is the general contractor in connection with the Confederation Life Project in downtown Toronto. Eastern has subcontracted concrete forming in relation to walkways around the building to a landscape subcontractor, which has also in turn assigned the performance of this work to members of the Labourers. The Carpenters' grievance with respect to this is dated April 29, 1992.
The grievance against Ellis-Don was referred to the Board for arbitration on November 11, 1991. After an attempt to settle the matter failed, it was listed for hearing on June 22, 1992. At that time, the matter was adjourned on consent in order to permit Ellis-Don to file a complaint under section 93 of the Act. On July 20, 1992, the three companies filed a joint complaint regarding the work in dispute under the grievances. We have referred to the reply filed by the Carpenters. In the reply filed by the Labourers, the position taken is that the work in dispute falls within the landscaping sector of the construction industry and does not fall within the industrial, commercial and institutional sector ("ICI"). The Labourers on this basis disagree that the work in dispute is governed by the agreement. Counsel for the Labourers stated at the hearing that the Labourers are asking the Board to recognize landscaping as a sector, notwithstanding that it is not mentioned in section 119 of the Act defining the term "sector" for the purposes of the Act.
The Board was given a copy of the agreement entered into on May 15, 1991 naming as parties three local unions, the Formwork Council of Ontario, and a number of employer associations. The agreement, however, has only been signed by the Formwork Council, the Labourers, the Carpenters and the International Union of Operating Engineers, Local 793. Whatever the intention may have been when the document was drafted, it has not been signed by the employer associations, nor by any of the individual employers before us. The Carpenters and the Labourers acknowledge that they are bound by this agreement and that it is still in effect. This agreement is commonly referred to by the parties as the "peace treaty". It appears that the agreement was the culmination of lengthy negotiations aimed at settling disputes between the unions over work jurisdiction. The preamble to the agreement states:
WHEREAS the parties are desirous of agreeing on the performance of certain work on projects in Ontario Labour Relations Board Geographic Area No. 8, excluding that portion which lies south west of Highway 25, and 5imcoe County ("the Geographic Area").
- The agreement sets out various understandings between the unions as to which trade shall perform certain work, as well as obligations on the part of each union to act consistently with the agreement. The agreement also sets out certain obligations on the part of employers; however, as we have noted, the employer associations named have not signed the agreement. In addition, the agreement contains a procedure for the resolution of disputes which arise out of the interpretation, application, administration or any alleged violation of the agreement. Some of the provisions to which we were referred in argument are:
The carpentry portion of concrete forming construction work on any other project in the Geographic Area which may be found to be in the ICI sector of the construction industry, other than on the projects referred to in paras. 1 and 2 above, shall be performed exclusively by members of Local 27 employed under the Carpenters' Provincial Agreement.
The Council and Local 183 undertake and agree not to bargain for, attempt to bargain for or conclude any collective agreement or other arrangement which is inconsistent with these Minutes of Settlement affecting carpenters represented by them engaged in the carpentry portion of concrete forming construction on the projects in the Geographic Area covered by paras. 3 and 5, supra, nor to supply members directly or indirectly as employees to contractors acting in a manner contrary to these Minutes and any such collective agreement or other arrangement entered into contrary to this provision is null and void.
The parties hereto agree on the speedy resolution of any dispute which may arise amongst them in the interpretation, application or administration or any alleged violation of these Minutes of Settlement, including any of the definitions of the projects referred to in paras. 1, 2, 3,4 and 5, supra, by final and binding arbitration under the Arbitrations Act, R.S.O. 1980, c. 25, within fourteen (14) days after the request for such arbitration is made. Arbitration shall be before a single arbitrator selected by the parties from a permanent panel of arbitrators set forth in Appendix" A" attached hereto and with the expense of such arbitration to be shared by all of the parties equally. Notice of the request for arbitration shall be given to the parties to these Minutes of Settlement and to the affected contractor who will have an opportunity to participate at the hearing and such award shall be binding upon them.
The parties hereto consent to any award of an Arbitrator being enforced in the same manner as a judgment or order of the Supreme Court of Ontario. Where the Arbitrator finds that any party to these Minutes of Settlement, including any affected contractor, has violated these Minutes of Settlement then, in addition to any other relief which may be determined as appropriate, the Arbitrator shall be empowered to order said party or parties to compensate any party affected by the violation in damages, including interest.
The parties hereto undertake and agree to discontinue any proceedings pending before the Ontario Labour Relations Board which have not already been resolved by them in respect of jurisdictional disputes or any other proceedings involving matters covered by these Minutes of Settlement and agree in the future not to take any such proceedings which may vary or be in conflict with the terms of these Minutes of Settlement.
The parties undertake and agree to uphold these Minutes of Settlement in any proceedings before the Ontario Labour Relations Board and to support one another in cases of any challenge, directly or indirectly, to these Minutes of Settlement, including jurisdictional claims or related proceedings filed by any person or trade union before any tribunal.
- Counsel for the Labourers acknowledges that if the Board were to determine that this work is in the ICI, then it is covered by the agreement. By letters dated September 8, 1992 from counsel for the Carpenters to counsel for the Labourers, the Carpenters informed the Labourers that they were invoking the arbitration provisions of the agreement, and proposed an arbitrator. In this letter, it is alleged that the Labourers are in contravention of the agreement by performing and continuing to perform the carpentry portion of concrete forming construction work in connection with the projects which are the subject of this complaint, and by failing to uphold the agreement in the course of this complaint before the Board. As a result of the failure by the Labourers to concur with the arbitration procedure and agree to an arbitrator, the Carpenters have brought a motion to the Ontario Court (General Division) seeking the appointment of an arbitrator. This motion has yet to be heard, as the parties are awaiting the Board's decision on the deferral issue.
Argument
Counsel for the Carpenters urges that the principle that parties ought to be held to the bargain that they have made ought to be sufficient reason for the Board to defer to the dispute resolution mechanism contained in the agreement. By paragraph 25 of the agreement, the parties have acknowledged the primacy of the agreement, and of the procedures contained therein, over any proceedings to the Board. The parties have agreed not to take any proceedings to the Board which might "vary or be in conflict with" the terms of the agreement. By their very position in this complaint, the Labourers are in violation of the agreement. Counsel for the Carpenters stated that if the Board proceeds with the matter, it is in effect making it impossible for the Carpenters to enforce paragraph 25 of the agreement.
Counsel referred the panel to decisions of the Board in which the Board has placed considerable emphasis on agreements between unions in making determination of work assignment. The panel was urged to show the same deference to the trade agreement in this case.
Counsel for the Carpenters urged the Board to adopt the policy underlying the Arbitrations Act, R.S.O. 1991, ch. A.24. As recently amended, this Act permits parties to agree to submit to arbitration disputes which arise between them. Where a party to an arbitration agreement commences a proceeding to a court, the court is compelled to stay its proceedings, except under specified circumstances.
In counsel's submissions, the agreement before us does not oust the jurisdiction of the Board. The Carpenters' request is that the Board defer its proceedings, not terminate them. It would still be open to the parties to return to the Board if the arbitration process were not effective in resolving the disputes between the parties. In his submission, however, the arbitration could well determine, if not legally, then practically, the issues before the Board. It is appropriate for the Board to defer to it in the context of the agreement between the parties, and in the context of the public policy in favour of private arbitrations as expressed in the Arbitrations Act.
l4. Counsel for the companies submits that the issue of deferral does not affect the companies. Since the companies have not signed the agreement, they have no place in an arbitration under the agreement. The companies have chosen to take their dispute to the Board. If the Board chooses to defer to arbitration, the results will not be binding on the company. The parties may find themselves back at the Board on the same issues that were the subject of the arbitration. Counsel points out that these proceedings were triggered by grievances filed by the Carpenters against the companies, not by proceedings against the Labourers under the agreement. By choosing to refer the grievance against Ellis-Don to the Board, the Carpenters have chosen the Board as their forum. As it appeared that the grievances raised issues of work jurisdiction, the companies have responded by filing a complaint under section 93 in order to have these issues determined.
It is also submitted that to the extent that there is an issue as to what sector the work in dispute belongs in, this is an issue that can only be determined by the Board under section 153 of the Act.
Counsel for the Labourers submits that the Act does not give the Board jurisdiction to defer to a private arbitration. The Act is a complete code. Section 93(13) of the Act sets out certain circumstances where the Board may defer a complaint under section 93. Absent those circumstances, the Board cannot decide to defer a complaint.
In any event, it is submitted that there are good reasons in this case not to defer to private arbitration. The private arbitration is a two-party procedure, arising out of an agreement between two unions. In many cases which arise under section 126 of the Act, the Board has decided that it is appropriate to defer arbitrations under a collective agreement to a complaint under section 93 where it is clear that the dispute underlying the grievance is in the nature of a work assignment dispute. The Board has preferred such disputes, in which multiple parties may have an interest, to be determined in a forum in which all interested parties participate and in which the Board has greater remedial powers to resolve the dispute.
Counsel states that the complaint raises issues which go beyond the scope of the private agreement in any case. For instance, the companies have raised issues of area practice in support of their position, which they have a right to have determined by the Board. In determining the issues under the complaint, the Board may necessarily be engaged in interpreting the terms of the agreement, since one of the issues which will arise under this complaint is the applicability and significance of the agreement. The Board has done this in other cases of work assignment complaints. For example, in Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915, the Board interpreted the terms of an agreement respecting trade jurisdiction to find that it had been terminated.
Counsel for the Labourers agreed that the Board had the exclusive jurisdiction to determine sector disputes, and he relies on the wording in paragraph 3 of the agreement to support the view that the parties also intended the Board to have this exclusive jurisdiction. Finally, it was also submitted that if the Board looks for guidance to the Arbitrations Act, it should take into account that one of the circumstances under which a court is given the discretion not to stay a court proceeding in favour of an arbitration is where the "matter is a proper one for default or summary judgement" (section 7(2)5 of the Arbitrations Act). In counsel's submission, the provisions under section 93(1.2) of the Labour Relations Act permitting the Board to decide matters under section 93 after a consultation with the parties, is analogous to a summary judgement procedure. If it is appropriate for a court to take jurisdiction over summary judgement matters, it must also be appropriate for the Board to decide not to defer its proceedings where such a consultation is available.
Decision - Deferral to Arbitration
We have decided that it is not appropriate for the Board to defer these proceedings under section 93 of the Act, to arbitration proceedings under the agreement between the Labourers and the Carpenters.
The Board is satisfied that it has the jurisdiction to defer its proceedings to other proceedings commenced under the Act or private agreements. Under subsection 93(1.1), the Board has a discretion as to whether to proceed with a complaint under that section, either by consultation or inquiry. The predecessor provision to subsection 93(1.1) [93(1)] likewise gave the Board the discretion to inquire into a complaint. The Board has on occasion exercised this discretion against inquiring into a complaint made under section 93. For example, in E.S. Fox Ltd., [1990] OLRB Rep. May 504, the Board declined to proceed further with a complaint where the underlying dispute no longer existed. It would also be open to the Board to decline to proceed with a complaint in circumstances of extreme delay.
In this case, however, there are good reasons for the Board to proceed with the complaint. The complaint has been filed by three companies. The Carpenters have filed grievances against these three companies, claiming compensation for alleged violations of the collective agreement. The grievances are grounded in disputes over the assignment of work. Instead of being assigned to members of the Carpenters, which the Carpenters allege is required by the collective agreements, the work has been assigned to members of the Labourers. Although litigation with respect to the dispute was initiated as grievances, therefore, it is clear that the substance of the dispute is a jurisdictional one, in which there are multiple interested parties. In other similar cases, where it is apparent that the real dispute underlying a grievance is a jurisdictional dispute the Board has adjourned the arbitration of grievances brought under section 126 of the Act pending the determination of the jurisdictional dispute under section 93: see, for instance, PCL Constructors Eastern Inc., [1991] OLRB Rep. March 354. In this case, on agreement of the parties, the arbitration of the grievance against Ellis-Don was adjourned pending the filing of this complaint.
As in all such cases, the determination of the jurisdictional dispute complaint will clearly have an effect on the resolution of the grievances. Having filed the complaint in order to have these issues resolved, it appears to us that prima facie, the applicants have the right to have these matters dealt with by the Board.
The issues which arise under this complaint, and the issues which the Carpenters seek to have heard by arbitration under the agreement, overlap but are not congruent. In a section 93 proceeding, the central issue is the appropriateness of a disputed work assignment. In a private arbitration under the agreement, however, the parties are limited to issues which arise under the agreement. Here, the Carpenters allege that the Labourers are in violation of their obligations under the agreement. In adjudicating on this issue, an arbitrator may have to determine whether the work in dispute is covered by the agreement. In dealing with the section 93 complaint, the Board may also have to determine this issue, since trade agreements are an important factor which the Board takes into account in determining whether a disputed work assignment was appropriate. They are not, however, the only factor.
To the extent that there is an overlap between the issues which might arise in an arbitration, and the issues which might arise under section 93 complaint, the parties to the agreement have attempted to avoid duplication of proceedings. However, as we have noted, the agreement does not bind the applicants before us, who have a real interest in having these issues resolved. It seems to us that the likelihood of duplication of proceedings will be minimized where the issues are determined in the context of a section 93 proceeding in which all interested parties will participate and be bound by the result, as contrasted with a private arbitration involving only the parties to the agreement.
We agree with counsel for the Carpenters that parties ought to be encouraged to abide by the bargains they have made, and the Board's rulings should not discourage parties from settling trade disputes or from abiding by these settlements. However, we do not see our ruling here as having any detrimental effect on these private arrangements. By our ruling, we make no finding as to whether the Board would defer its proceedings under section 93 where all parties to a complaint are also parties to an agreement providing for a dispute resolution mechanism. In addition, our ruling does not affect the right of the Carpenters to seek remedies under the agreement for the alleged violations of the agreement by the Labourers. Clearly, there are issues between the Carpenters and the Labourers under the agreement which extend beyond the issues that are before the Board in this complaint. The Carpenters are not precluded by our determination from seeking to have these matters arbitrated.
With respect to counsel's arguments regarding the Arbitrations Act, it was acknowledged that the Board is not a "court" which is subject to the provisions of that Act. It was submitted however that the policies underlying that Act ought also to be applied by the Board. We accept that the Act is a reflection of public policies regarding the relationship between court proceedings and private arbitrations, and the encouragement of private arbitrations. However, we are satisfied that the Act contains no public policy which limits the Board in the exercise of its statutory powers. Further, the policies applied by a court under the Arbitrations Act in deciding to defer its proceedings to private arbitration may not be appropriate for an administrative tribunal acting under a specialized statute. In any case, we decline to apply them here.
Finally, we wish to comment on the effect of the Board's new powers and procedures under section 93, as amended, on these issues. Section 93(1.1) permits the Board to consult with the parties affected by a complaint, or inquire into any matter raised by the complaint, or both. Section 93(1.2) permits the Board to make any interim or final order it considers appropriate after consulting with the parties or on an inquiry. The Act as amended gives the Board the power to make rules expediting proceedings under section 93, and the Board's new Rules of Procedure take up this invitation. The result is that the Act and the Rules now provide the framework for much more expeditious resolution of complaints under section 93 than had previously been the case. There is no reason to believe that deferring to private arbitration would result in prompter resolution of the jurisdiction dispute between these parties, as was suggested by counsel for the Carpenters, than simply proceeding with the complaint before us.
In fact, all parties have suggested that, if this panel ruled against deferring this matter to arbitration, the complaint be scheduled to a date for consultation. This appears to us to be a sensible suggestion, and it is entirely possible that the matter can be determined after such a consultation. Therefore, with this consultation date in mind, we now turn to the additional orders requested respecting procedure and additional filings.
The "Sector Issue"
- Counsel for the companies requests that the Board make a determination as to which sector of the construction industry the work in dispute falls into, before proceeding with the merits of the jurisdictional dispute. Although counsel states that there is no impediment to the Board deciding the sector issue in the course of the consultation on the complaint, he indicates that if the Board determines the work to be in other than the ICI sector, the companies will likely withdraw their participation in the proceedings. The Labourers and the Carpenters both urge the Board to deal with the sector issue in the course of dealing with the merits of this complaint. We see no compelling reason in this case to separate the issues for determination. If in the course of making our determinations on the complaint, this panel is required to determine whether the work in dispute is governed by the agreement between the Carpenters and the Labourers, and the resolution of this issue requires a determination as to which sector the work belongs to for the purposes of that agreement, then we will deal with this issue in the course of dealing with the complaint.
Additional Filings
The Carpenters request an order that the complainants and the Labourers file a further, more detailed description of the work in dispute. We do not view this as necessary. The jurisdictional dispute commenced with the Carpenters' grievances. Although the parties may not be able to agree on a description of the work in dispute, the Carpenters in our view are not prejudiced in their ability to file a response by the manner in which the work has been described thus far by the other parties. However, we will direct the companies to file any drawings, pictures or diagrams relevant to the issues and to which they have access, in order to assist the Carpenters in framing their description of the work in dispute.
The Labourers are also directed to state all of the facts on which they will rely in support of their position that the work in dispute is in the landscaping sector and is therefore not covered by the agreement with the Carpenters, and to file copies of any documents on which they will rely in this matter.
In the circumstances of this case, the Carpenters will be given the opportunity to file further materials in response to the complaint and the reply by the Labourers, and the applicants will also have an opportunity to address the "sector issue" once it has been particularized by the Labourers.
Procedural Rulings
This matter is scheduled for consultation before the Board on May 18th, 1993 at the Board's Offices, 6th Floor, 400 University Avenue, Toronto, Ontario, commencing at 9:30 in the forenoon (local time).
The applicants are directed to file the materials described above on or before March 12th.
The Labourers are directed to file the materials described above on or before March 26th.
If the applicants wish to take a position with respect to the "sector issue", they are directed to file a statement of the facts as well as copies of any documents upon which they rely, on or before April 9th.
The Carpenters are directed to file the materials required by the Board's Rules of Procedure respecting jurisdictional disputes, on or before April 30th.