Ontario Labour Relations Board
[1993] OLRB Rep. August 740
1081-93-JD Ironworkers' District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Applicants v. Comstock Canada, a division of Lundrigans-Comstock Limited, Millwrights' District Council of Ontario, Millwrights, Local 1244, United Brotherhood of Carpenters and Joiners of America, Millwrights, Local 1592, United Brotherhood of Carpenters and Joiners of America, Responding Parties
BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.
APPEARANCES: S.B.D. Wahl and G. Michaluk for Ironworkers, Local 700; N. L. Jesin and H. Martinak for Millwrights, Local 1244; P. Fitzgerald for Millwrights, Local 1592; No-one appearing on behalf of Comstock.
DECISION OF THE BOARD; August 19, 1993
1This is a jurisdictional complaint, filed in June 1993, pursuant to the recently amended section 93 of the Labour Relations Act ("the Act"). The Board held a consultation with the parties, during which it delivered several oral rulings, which we put in written form and expand upon here.
2This dispute is between the Ironworkers and the Millwrights over certain work in southwestern Ontario. Approximately one week prior to the day scheduled for the consultation, the applicants, the Ironworkers, notified the Board and the other parties that the employer, Comstock, and the Ironworkers had settled both the instant application and a related application pursuant to section 126 of the Act (Board File No. 1187-93-G). The Ironworkers advised that the Millwrights had not signed the settlement, and that accordingly it was still necessary for the consultation in this application to be held.
3In response, the Millwrights wrote to the Board, indicating they were not party to the settlement, and asserting that the Minutes of Settlement "were ineffective to the extent that they purport to resolve [the instant] jurisdictional dispute." The Millwrights also asserted that the jurisdictional dispute ought to be withdrawn or dismissed by the Board, on the basis there was no longer a "lis" between the parties. At the consultation, they expanded upon these positions, submitting that there was no longer "demand" for the work in dispute, within the meaning of section 93. After hearing the submissions of the parties on this issue, the Board ruled orally that it would not dismiss the consultation, and that the jurisdictional dispute would proceed before the Board.
4Prior to the recent amendments, jurisdictional complaints involved extremely lengthy litigation, often of several years duration. Under the new provisions, the Board is no longer required to hold an inquiry or full hearing, but can conduct a consultation, with no need or requirement to hear viva voce evidence. Formerly, when the Board had to consider whether to dismiss a jurisdictional dispute on the basis that the grievance had been settled between one of the unions and the employer, the Board and the parties were faced with extremely high litigation costs, from both delay and financial perspectives, if the proceeding continued. That is simply not true today. Now, by the time the parties appear at a consultation, almost all of their costs will already have been incurred. Since in most cases the consultation will be finished in one day, there are no additional financial costs to the parties in proceeding. And since the Board has been able for the most part to render quick decisions in jurisdictional disputes, any delay aspect is minimal, if it exists at all. Further, there would be no savings in Board time and resources if at the consultation the Board decided not to proceed. The jurisprudence which developed prior to the amendments, to the extent that it deals with the potential costs of proceeding with the application, is therefore of limited relevance today.
5In the instant case, it was clear that the two trades were still in dispute over the correct assignment of the work. This is so even though the employer which had assigned the work had signed a settlement with the Ironworkers, and the settlement on its face applied to both this application and the section 126 application. An employer was still assigning work to persons in one union rather than in another, and the other union still objected. A jurisdictional dispute is a dispute in essence between unions. This dispute still existed, with respect to the same work in the same geographical area of the province and between the same unions. While the Ironworkers and the employer can settle the section 126 application without Millwrights concurrence, a jurisdictional complaint is a three party dispute (if not more) and it cannot be settled only where two of the parties agree. The Millwrights themselves assert this in their letter. Additionally, all the financial costs had already been incurred by the parties, and the dismissal of the application would not save Board resources. Accordingly, the Board ruled as it did, that the consultation would proceed.
6There was a dispute over the description of the work in dispute. The complainant described the work as "all construction work in connection with the installation, erection, dismantling, alteration or relocation of material handling systems, inclusive of all types of conveyor systems, machinery, and/or equipment including off-loading, rigging, handling, placement, alignment, levelling, securing and adjusting thereof'. To paraphrase this description, the Ironworkers were claiming the work involved with the disconnecting or dismantling of all types of material handling conveyor systems, the transportation or removal of the dismantled systems to a new location, and the erection or installation of the material handling systems at the new location. The Ironworkers asserted that all this work ought to be assigned to a composite crew consisting of equal numbers of members of the Ironworkers and the Millwrights, with all members of the crew performing all work functions interchangeably. Part of the Millwrights' response was the assertion that the disputed work assigned by Comstock did not include any erection or installation, and accordingly installation or erection work did not form part of the "work in dispute" and the Board ought not to make any direction with respect thereto.
7The Board ruled that the work in dispute was as described in the Ironworkers' materials, which included installation, reconnection, or erection of the material handling systems. In the Board's view, the real dispute between the parties was a dispute over the entire chain of work involving material handling systems, from the time that the systems were tagged and disconnected, through their transportation, and including their installation at a new site. The Ironworkers' Briefs make this clear, both in terms of the description of the work in dispute between the trades, and the different claims in that respect by the two trades. The grievance filed by the Ironworkers against Comstock and the resultant section 126 application both include a claim for the installation work at the new location. The settlement reached between Comstock and the Ironworkers includes agreements as to the correct assignment of the installation work. The Millwrights in their Briefs do not assert any difference between installation and the other operations. From a practical perspective, reflecting the reality of how work is done in the industry, how claims for work are made, and the basis of those claims, the work which remains in dispute is the entire package of work functions, from the disconnecting through to the installation of the systems in question.
8If the Board were to conclude otherwise, and decide that it could only make a direction with respect to the disconnecting and transportation of the equipment, but not the installation at the new location, then the same parties would have to relitigate the same matter, based upon the same evidence and with the same arguments. This would make little labour relations sense. This work both logically and in practice customarily includes installation.
9The wording of section 93(2) gives the Board authority to make its decisions binding on parties for other jobs not then in existence, or jobs in other geographic areas. The Legislature has given the Board specific authority to make decisions affecting future jobs, where no work at all has yet been performed. To fulfill this statutory mandate, to fully determine work assignment disputes, the Board must take a realistic view of the work in dispute. The jurisdictional disputes provisions are unlike other parts or sections of the Labour Relations Act. For the Board to be able to determine work assignment disputes between trades in a practical fashion, it may in given situations have to look at the overall context. In circumstances where a dispute clearly exists over particular work, where parties have been put on notice of the nature of the competing claims and provided full opportunity to respond, it is more consistent with the Board's mandate to resolve jurisdictional disputes to deal with the real work in dispute.
10For these reasons, we ruled that our decision ought to deal with the full dispute between the trades, and this included the entire chain of the disputed work, including the tagging, dismantling or disconnecting, the transporting of the dismantled systems, and their installation or reconnection at the new site.
11With respect the work in dispute, as described in the Ironworkers' materials, the Board accepted the argument of counsel for the Millwrights that the Acco decision ([1992] OLRB Rep. May 537) did not decide the issue before it. The Board in that decision dealt only with a monorail conveyor system, and the systems here encompass all types of conveyors, including monorail systems.
12The Board was not persuaded to draw distinctions between the types of material handling conveyor systems, whether they be monorail, light package, or other types. Nor were we prepared to accept the distinction urged upon us by the Millwrights that we ought to distinguish, for purposes of area and employer practice, between the food and automotive industries, or for that matter any other types of industry. There was not a significant practice in Board Area #1 of assignments in the I.C.I. sector being made on a different basis depending on whether they arose in the automotive or another context. We therefore considered the overall I.C.I. practice. That practice did not establish in Board Area #1 a pattern of assignments of other than a 50-50 composite crew, where the Ironworkers knew of the work and a markup meeting was held. In other words, the prevailing practice where all interested parties were aware of the work was to assign to a composite crew, as claimed here by the Ironworkers.
13On balance, the Board was satisfied that the correct assignment was as claimed by the Ironworkers. More particularly, we were satisfied that the correct assignment was to a composite crew, consisting of equal numbers of Ironworkers and Millwrights, performing the work functions in question interchangeably. This has been the general (though not invariable) practice in the areas in question. Trade agreements have not been generally followed by the parties in Board Areas #1, 2 or 3. Assignment to a composite crew is the more rational and sensible assignment in all the circumstances.
14Accordingly, the Board granted the relief sought in paragraph I of Tab 1 of the Ironworkers' Brief. To recite it here, we order that:
all construction work in connection with installation, erection, dismantling, alteration or relocation of material handling systems inclusive of all types of conveyor systems, machinery and/or equipment including the off-loading, rigging, handling, placement, alignment, levelling, securing and adjusting thereof at the Campbell Soup Company Limited, Chatham, Ontario should be assigned to a crew consisting of equal numbers of members of Ironworkers, Local 700 and Millwrights Local 1244, performing all work functions interchangeably.
15Our order will be binding upon all the parties before us, including the employer, Comstock Canada, the Millwrights District Council of Ontario, Millwrights Locals 1244 and 1592, all applicants, and in addition, upon the two employer organizations which were named in the application as parties which might be affected by the application, and to which notice of the proceedings was provided, namely the Ontario Erectors Association, Incorporated and the Association of Millwright Contractors of Ontario. Further, pursuant to section 93(2) of the Act, our order is to be binding as well upon all other jobs undertaken in the future in Board Area #1. The orders in this paragraph apply to assignments where the contractor is bound to both the Ironworkers' Provincial Agreement and the Millwrights' Provincial Agreement.
16We wish to emphasize and make clear that our order is not intended to affect in any way any pre-existing claims for the work in question by other trades, but is only to determine the correct assignment as between the two trades before us.
17We made our direction effective with respect to all future jobs in Board Area #1 for several reasons. This has been a festering and continuing dispute between the trades, and has reappeared, under different guises, several times before the Board. The parties are obviously still unable to resolve amongst themselves this dispute, and it is essentially the same dispute occurring over and over again. In its materials, the Ironworkers raised this aspect of the dispute and asserted that it was an abuse of Board proceedings for the Millwrights to continue to challenge the correctness of an assignment based upon a composite crew. The Ironworkers specifically claimed the relief we have given.
18In Inplant Contractors Incorporated (Board File 2827-90-JD), the Board had to decide whether or not to terminate a jurisdictional dispute between the same two parties over similar work, because the grievance had been settled. That case arose prior to the amendments to the Act. The Board wrote as follows:
Practically speaking, this dispute ought not to come before the Board again, given the proceedings and the decision in Acco, and given the material disclosed in the Briefs before us. We would have thought that the decision in Acco would resolve this dispute in Board Area #1. More particularly, the Millwrights ought to think seriously and at some length before bringing another jurisdictional dispute, or fostering one, of the nature of the one before us, where their request is for other than a fifty-fifty composite crew in Board Area #1, of the sort directed by the Board in Acco.
19The significance of the Inplant decision lies not in the fact that another similar dispute, the instant proceeding, has come before the Board, but in the fact that it demonstrates that the dispute in Board Area #1 has existed for some time and continues to exist. Where the materials filed disclose such a continuing dispute, and the materials enable the Board to determine the correct assignment, the Board may issue remedies that will settle the dispute beyond the particular work assignment.
20Ironworkers' also requested that the orders be binding with respect to Board Areas #2 and 3. We declined to so order. The geographical locus of the dispute in the prior Board proceedings and in this proceeding was in Board Area #1. The persuasive or practical effect of our decision on assignments in Board Areas #2 and 3 can be addressed in any further proceeding that raises such issues.