[1993] OLRB Rep. December 1392
1788-92-G Sheet Metal Workers' International Association, Local 473, Applicant v. The Electrical Power Systems Construction Association, Bruce Nuclear Power Development, Responding Party
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
APPEARANCES: J. Raso and Gord Stewart for the applicant; M. Patrick Moran, Neil Donnelly and Barry Roberts for the responding parties.
DECISION OF THE BOARD; December 16, 1993
Pursuant to section 126 of the Labour Relations Act ("the Act") the applicant ("the trade union" or "Sheet Metal Workers") has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
The facts giving rise to this grievance are not in dispute. In July 1992 a mark-up meeting was held by the responding parties ("the employer" or "EPSCA") with respect to certain work to be performed at the Bruce Nuclear Power Development. At that mark-up meeting work in connection with the removal for scrap of exterior metal siding from the roof of the Bruce Nuclear Power Development's Steambridge - Reactor and Turbine Buildings ("the work in dispute") was assigned to members of the Labourers International Union of North America Local 1059 ("the Labourers").
The Sheet Metal Workers' asserted that the work had been misassigned and should properly have been assigned to members of the Sheet Metal Workers Union. A grievance was filed in which the following relief was claimed:
RELIEF SOUGHT:
An Order that the Employer is bound by the Collective Agreement.
A Declaration that the Employer has violated the Collective Agreement as hereinbefore set forth.
An Order that the Employer apply the full terms and conditions of the Collective Agreement at all projects which may now or hereafter be engaged in, and without limiting the generality of the foregoing, and Order that the Employer employ and continue to employ only members in god standing of the Union in accordance with the Collective Agreement and in particular Articles 2 and 9.
Damages against the Employer by reason of the aforementioned violation of the Collective Agreement, including interest.
Such further and other relief as may be appropriate in the circumstances.
That grievance was referred to the Board on September 21,1992. The grievance however was adjourned sine die pending the adjudication by the Board of a jurisdictional dispute which had been filed by the Sheet Metal Workers' with respect to the work in dispute which had been assigned to the Labourers. It is not disputed that in response to the grievance the employer asserted that the work in dispute did not fall within the jurisdiction of the Sheet Metal Workers' union and had been properly assigned to the Labourers' union.
By decision of the Board dated March 8, 1993, the panel of the Board hearing the jurisdictional dispute complaint found in favour of the position of the Sheet Metal Workers. The Board declared that the work in dispute "should have been assigned to members of the applicant Ontario Sheet Metal Workers' and Roofers' Conference and its affiliate Sheet Metal Workers' International Association, Local 473" and ordered "all such future work in Board Area #3 assigned by Ontario Hydro or the Electrical Power Systems Construction Association be assigned to members of the Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers' International Association, Local 473".
Counsel for the Sheet Metal Workers' asserts that when the issue of the trade union's entitlement to perform the work in dispute had been established, the trade union requested that this grievance be relisted for hearing. Before this panel the trade union seeks a declaration and compensatory damages flowing from the employer's violation of the collective agreement.
Counsel for the employer asserts that the provisions of the collective agreement do not permit the Board to award damages in the circumstances of this case. The relevant provisions of the collective agreement are as follows:
8.2 Regular mark-up meetings will be conducted for each project and for transmission and transformation construction at times appropriate for the work in progress. The purpose of these mark-up meetings is to indicate to the Unions the work which is about to be carried out by the Employers in order to minimize the potential for jurisdictional disputes.
EPSCA will provide written notice to the Union as far in advance as possible of markup meetings.
The Union will attend these mark-up meetings, and every effort will be made to settle questions of jurisdiction before the dates that management indicates the work is expected to commence.
8.3 The Employer who has the responsibility for the installation shall make a proposed assignment of the work involved. The Employer will specify a time limit for the Unions involved to submit evidence of their claims. The Employer will evaluate all evidence submitted as per Article 8.1 and make a final assignment of the work involved. The Employer will advise the union of the final assignment prior to work commencing. A copy of such assignments shall be submitted to the Business Manager of the Ontario Sheet Metal Workers' Conference.
8.4 When a jurisdictional dispute exists between unions, and upon request by the Union, the Employer shall furnish the Business Manager of the Ontario Sheet Metal Workers' Conference with a signed letter from a duly authorized official of the company on Employer stationary [sic], stating whether or not the Union was employed on specific types of work on a given project. The Employer shall supply the Business Manager of the Ontario Sheet Metal Workers' Conference with a copy of the evidence submitted by the other union(s) involved along with drawings and/or prints plus a description of the work or process in dispute when requested.
8.5 In the event that a jurisdictional dispute cannot be settled on a local basis by the Unions involved, it shall be submitted to the Unions involved for settlement without permitting it to interfere in any way with the progress of the work at any time. In the event the dispute is not settled by the Unions involved, EPSCA and/or the Union may then submit the dispute to the Ontario Labour Relations Board under the Labour Relations Act. EPSCA and the Ontario Sheet Metal Workers conference will advise each other in writing of their intent to submit a jurisdictional dispute to the Ontario Labour Relations Board and will identify in detail the work in question. The decision of the Ontario Labour Relations Board with respect to the jurisdictional dispute will be final and binding on the parties to this Agreement. The Ontario Labour Relations Board will determine the jurisdictional dispute before it pursuant to its normal criteria.
8.6 In the event the Union pursues or responds to a jurisdictional dispute at the Ontario Labour Relations Board the hearings panel appointed by the Ontario Labour Relations Board pursuant to the Act is not authorized to award damages in respect of a misassignment of work, only in circumstances where the other union(s) involved in the proceedings is (are) equally restricted in their ability to claim for damages. However, this paragraph 8.6 shall not apply where the jurisdictional dispute and the misassignment of work involves the same employer and the same work previously the subject matter of a jurisdictional dispute, relating to a construction project covered by this Agreement or its predecessors, before the Ontario Labour Relations Board.
Counsel for the employer submits that Article 8 is a complete code which governs the parties in these circumstances. He asserts that the intent of Article 8 is clear. In exchange for a provision requiring the employer to hold regular mark-up meetings, the trade union agreed to forego damages the first time the employer errs in assigning work. As counsel put it, Article 8.6 "gives the employer the right to be wrong the first time without suffering damages as long as the employer holds the mark-up meeting".
Counsel for the employer urged the panel to consider the provisions of Article 8 in their entirety. He argued that the parties had agreed upon a complete process which was to be followed in all cases of assignments and misassignments of work. Pursuant to Article 8 that process requires the employer to hold mark-up meetings and assign the work. If there is a misassignment of work a jurisdictional dispute can be filed. The decision of the Board with respect to the assignment is to be final and binding. That decision ends the matter including any issue of damages which may flow from the original assignment unless the union can bring itself within the exceptions set out in Article 8.6 that:
(a) The other union party to the jurisdictional dispute was not equally restricted from claiming damages; or
(b) The issues with respect to the jurisdictional dispute and the misassignment of work involved the same employer and the same work previously the subject matter of a jurisdictional dispute.
In this instance there is no dispute that the collective agreement between EPSCA and the Labourers contains a provision substantially similar to Article 8.6 and precludes the Labourers from claiming damages in these circumstances. Counsel for the employer maintained that this work also had not been the subject of jurisdictional dispute involving the employer and as a result the latter exception set out in Article 8.6 does not apply.
Counsel for the trade union argued that Article 8.6 was clear and unambiguous and on a plain and ordinary reading precludes only the panel hearing the jurisdictional dispute from awarding damages. As this panel is not the panel hearing the jurisdictional dispute but rather the panel hearing the grievance, Article 8.6 does not apply. Counsel noted that there was a clear distinction between a panel of the Ontario Labour Relations Board sitting as a hearings panel to adjudicate upon a jurisdictional dispute complaint, and an arbitration panel which hears a grievance which may have given rise to the jurisdictional dispute. He submitted that if the parties had intended to restrict the arbitration panel hearing the grievance from awarding damages they could have done so in much clearer language.
In the alternative counsel for the Sheet Metal Workers' asserted that even if Article 8.6 does preclude the trade union from seeking damages in a grievance which gives rise to a jurisdictional dispute, the present circumstances fall within the exception set out in Article 8.6 because the grievance involves the same employer and the same work previously the subject matter of a jurisdictional dispute. Counsel referred to the decision of the Board in Electrical Power Systems Construction Association, [1991] OLRB Rep. Feb. 185 where the Board found the installation of sheet metal siding to be the work of the Sheet Metal Workers' union.
Neither party adduced any extrinsic evidence of either past practice or negotiating history to assist in the interpretation of Article 8.6. Notwithstanding their different interpretations about the intent of the parties in negotiating Article 8.6, both counsel argued that the intent of the parties as reflected in the language chosen in the collective agreement was clear.
In our view the language used by the parties is not particularly clear. In the absence of any extrinsic evidence however we must interpret the intent of the parties from the language which they have chosen. In so doing we find we can take some notice of the fact that it is not the usual practice of the Ontario Labour Relations Board to award damages when dealing with a jurisdictional dispute complaint. If damages are awarded because of an erroneous assignment of work that issue is normally or typically left to be dealt with by the panel hearing the grievance which gave rise to the jurisdictional dispute complaint i.e. the grievance that work was improperly assigned to persons who were not members of the trade union filing the complaint.
We have determined that read in its entirety, Article 8, and in particular Article 8.6, precludes this Board from awarding damages in the circumstances of this case. We have made this determination for two reasons. First, the interpretation urged upon us by counsel for the trade union that the reference in Article 8.6 to the "hearings panel" refers to the panel hearing the jurisdictional dispute complaint would render the language of the collective agreement largely superfluous given the practice and jurisprudence of this Board not to award damages when dealing with jurisdictional complaints. Both EPSCA and the Sheet Metal Workers' are sophisticated parties within the labour relations community. Both regularly appear before the Board in a number of different types of cases including jurisdictional dispute complaints and grievances. In these circumstances it is not unreasonable to assume that the parties were aware of the Board's practice of not awarding damages in jurisdictional disputes. It would therefore be unnecessary for these parties to incorporate into their collective agreement language which prohibits only the panel hearing the jurisdictional dispute complaint from awarding damages. If their intent had been to do that the parties could simply have said "the hearings panel appointed to hear the jurisdictional dispute complaint is not authorized to award damages".
Secondly, and as a corollary to this, the language used supports our view that the parties did not intend to prohibit only the panel hearing the jurisdictional dispute from awarding damages. As noted, if that had been the intent the parties would simply have said "the hearing panel hearing the jurisdictional dispute complaint" and not "the hearing panel appointed by the Ontario Labour Relations Board pursuant to the Act". The latter phrase is not only more cumbersome but encompasses any hearings panel appointed by the Board pursuant to the statutory scheme of the Act to deal with issues arising out of a jurisdictional dispute or a misassignment of work. In this regard we consider it important that the parties themselves have drawn a distinction between a "jurisdictional dispute" and "the misassignment of work".
Both sentences in Article 8.6 refer to both "jurisdictional dispute" and "misassignment of work" while each of the previous references in Article is only to a "jurisdictional dispute". The parties themselves have drawn a distinction between the two types of matters. The first being a jurisdictional dispute involving competing unions. The latter being a dispute between an employer and a union about the assignment of work pursuant to the terms of the actual collective agreement. The difference in terminology is made clear in the last sentence of Article 8.6 which states the Article shall not apply where the "jurisdictional dispute and the misassignment of work" involves the same employer and the same work.
The intent of the parties as evidenced by the language they have used is to prohibit the hearings panel which deals with either the jurisdictional dispute or the misassignment of work from awarding damages. In adjudicating upon this grievance this "hearings panel" is being asked " to award damages in respect of a misassignment of work" in circumstances where the Sheet Metal Workers pursued, or responded to, a jurisdictional dispute at the Ontario Labour Relations Board. Article 8.6 states this "hearings panel" cannot do so unless certain conditions apply.
Having concluded that we are not authorized to award damages unless the circumstances before us fall within one of the exceptions set out in Article 8.6 we turn to the Sheet Metal Workers' alternative argument. Did this misassignment of work involve the same employer and the same work previously the subject matter of a jurisdictional dispute before the Ontario Labour Relations Board? We find that it did not.
A review of the decision in Electrical Power Systems Construction Association, supra ("the 1991 decision") indicates that the work in dispute which was the subject matter of that jurisdictional dispute was the installation of external sheet metal siding, the installation of interior sheet metal siding and the installation of metal cap screws to fasten such sheet metal to the temporary change facility at Bruce Nuclear Power Development. As indicated the work in dispute which is the subject matter of the jurisdictional dispute complaint which followed the filing of this grievance about the misassignment of work was work in connection with the removal for scrap of exterior metal siding. The work of installing sheet metal siding and the work of removal for scrap of metal siding are different.
We do not accept counsel's submissions that the Board in its 1991 decision found that all work in connection with sheet metal siding "belongs" to the Sheet Metal Workers. Neither do we accept that the basis for the decision of the Board regarding the "removal for scrap of metal siding" was based on an assessment as to which trade initially installed the metal siding and that therefore the Board's earlier ruling with respect to the installation of siding falls within the "same employer and the same work" exception set out in Article 8.6.
A review of the Board's decision dated March 8, 1993 indicates that the Board found Ontario Hydro's own policy applied to the jurisdictional dispute complaint before it. As a result the work of the removal for scrap of exterior metal siding should have been assigned to the sheet metal workers pursuant to Hydro's own policy. Applying that policy, together with the evidence of past practice, led the Board to conclude the jurisdictional dispute complaint in favour of the Sheet Metal Workers. The Board did not do so however because members of the Sheet Metal Workers installed the metal siding or because all work associated with metal siding "belongs" to the Sheet Metal Workers.
That the Board hearing the jurisdictional dispute itself drew a distinction and noted the
difference between the "installation" of sheet metal siding and the "removal for scrap" of sheet metal siding is evident from its comments at paragraph 18 of that decision wherein the Board notes:
'Because this was a "removal from scrap" assignment. we find the "removal and replace" and "installation" assignments materials of no real assistance".
We would note parenthetically that within the construction industry it is not uncommon for the parties (construction trade unions and employers alike) to distinguish between installation and removal with the result that there may be different assignments to different trades depending on such factors as whether the installed items serve a single purpose or a multi purpose, or whether the removal is for repair and re-use, re-use on site, scrap or salvage etc.
We therefore find that the work which formed the basis for the jurisdictional dispute complaint which followed the filing of this grievance, (the work which was "misassigned" as that term is found in Article 8.6) is not work which falls within the "same employer and same work" exception set out in Article 8.6. This is the first misassignment of work in connection with the removal for scrap of exterior metal siding.
Before this panel the employer did not dispute that its assignment of the work to the Labourers was a violation of its collective agreement obligations with the Sheet Metal Workers. We therefore declare that the employer violated the collective agreement when it failed to assign members of the Sheet Metal Workers union to perform work in connection with the removal for scrap of exterior metal siding to the first drop point. Having regard to the provisions of the collective agreement however we find that no damages are owed as a result of this first misassignment of work.