International Association of Bridge, Structural and Ornamental Iron-workers, Local 700 v. E. S. Fox Limited, 1994 CanLII 9782

[1994] OLRB Rep. MAY 543

4446-93-G International Association of Bridge, Structural and Ornamental Iron-workers, Local 700, Applicant v. E. S. Fox Limited; Ontario Erectors Association Incorporated, Responding Parties v. Millwrights District Council of Ontario on its own behalf and on behalf of its Local 1244, Intervenor

BEFORE: George Surdykowski, Vice-Chair, and Board Members W. N. Fraser and G. McMe­nemy.

APPEARANCES:S.B.D. Wahi and G. Michaluk for the applicant; Allen V. Craig and Moe Brous­seau for E. S. Fox; N. L. Jesin and H. Carruthers for Millwrights.

DECISION OF THE BOARD; May 19, 1994

The name of the responding party E. S. Fox Ltd. is amended to: E. S. Fox Limited.

2. This is a referral to the Board of a grievance in the construction industry, pursuant to section 126 of the Labour Relations Act.

3. By letter dated March 1, 1994, the applicant "Ironworkers" grieved as follows:

Please be advised that E. S. Fox is in direct violation of the Collective Agreement between Iron Workers District Council of Ontario and the Ontario Erectors Association to which E. 5. Fox is signatory.

specifics of the violation are:

That E. 5. Fox Ltd. have failed to properly assign work at the job site (Atlas Tube, Harrow, Ontario) as per the operative provisions of the Collective Agreement; thereby not employing the required number of Iron Workers Local 700 members.

As discussed in previous correspondence with yourself, as well as site supervisor Shane Mcin­tosh, the proper work assignment for the scope of work at Atlas Tube is:

An equal number of Iron Workers Local 700 members and Millwright Local 1244 members performing ALL work functions interchangeably.

Please accept this grievance as Step 2 of Article 24 - Grievance and Arbitration contained in the Collective Agreement.

4. In this application, the Ironworkers seek the following relief:

(a) A Declaration and Order that E.S. Fox Ltd. has violated the outstanding Orders of the Ontario Labour Relations Board and the Collective Agreement between the Ontario Erectors Association Incorporated and the International Association of Bridge, Structural and Ornamental Ironworkers and the Ironworkers' District Coun­cil of Ontario effective until April 30, 1995 ("the Collective Agreement") in failing to perform work at the Atlas Tube Project, Harrow, Ontario ("the Project") in accor­dance with the work assignment set out below.

(b) A Declaration and Order that the Ontario Erectors Association Incorporated and E.5. Fox Ltd. assign and perform all construction industry 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 the offloading, rigging, handling, placement, alignment, levelling, securing and adjusting thereof at the Atlas Tube Project, Harrow, Ontario, and throughout the County of Essex and Kent (O.L.R.B. Geographic Area #1) with a crew consist­ing of equal numbers of members of:

(i) the International Association of Bridge, Structural and Ornamental Iron-workers, Local 700 ("Ironworkers, Local 700"); and

(ii) Millwrights, Local 1244, United Brotherhood of Carpenters and Joiners of America ("Millwrights, Local 1244"),

without limiting the work functions of either trade and either trade performing all work functions interchangeably.

(c) An Order that E.5. Fox Ltd. not assign work to any trade or employee other than a member of Ironworkers, Local 700 in accordance with the Order set out above, defeating the purpose, intent and provisions of the Collective Agreement, contrary to the Collective Agreement and, in particular, Articles I and 2 and Appendix '~A" thereof.

(d) An Order that E.5. Fox Ltd. notify Ironworkers, Local 700 as soon as possible, but no later than twenty-four (24) hours prior to any job starting and advise of the approximate number of Ironworkers, Local 700 members required to perform the work.

(e) An Order of Damages against E.5. Fox Ltd. in respect of all wages and all other employment benefits inclusive of interest thereon, pursuant to the Collective Agree­ment and at Law.

(f) An Order that E.S. Fox Ltd. pay to the Ironworkers, Local 700 its fees and expenses, legal or otherwise, as it may have incurred by reason of the aforementioned violation of the Collective Agreement.

(g) An Order that the Ontario Erectors Association Incorporated, at its own expense, place a full page ad in the Southam Building Reports and Daily Commercial News publicizing the Orders binding upon all members of the Ontario Erectors Association Incorporated with respect to the assignment of work set out above.

(g) Such further and other relief as may be appropriate in the circumstances.

5. The Millwrights District Council and Millwrights, Local 1244 (jointly the "Millwrights") seek to intervene in this proceeding. They refer to the Board's decision in The State Group Limited, 119931 OLRB Rep. Dec. 1397 where, at paragraphs 6 and 7, the Board disposed of the jurisdictional dispute complaint as follows:

6. In the circumstances we order and direct that:

all construction work in connection with the installation, erection, dismantling, alter­ation, relocation, and repair of material handling systems inclusive of all types of con­veyor systems, machinery and/or equipment including the off loading, rigging, han­dling, placement, alignment, leveling, securing, adjusting and repairing thereof at the D.N.N. Hot Dip Galvanizing Line #1, windsor, Ontario should be assigned to a crew consisting of equal number of members of Ironworkers, Local 700 and Mill­wrights Local 1244 performing all work functions interchangeably.

7. we have further determined and direct that our order with respect to the assignment of this work in relation to a material handling system is to be binding upon all the parties named in the complaint including the employer contractor who assigned the work and the two employer orga­nizations named in the application. Further, pursuant to section 93(2) of the Act, our order is binding as well upon all other future jobs undertaken in Board Area #1. Our order applies to assignments made by contractors who are bound to both the Ironworkers Provincial Agreement and the Millwrights Provincial Agreement. (See, Comstock, supra and the reasons set out therein as they relate to the scope of the order.)

We also note that in Comstock Canada, (1993] OLRB Rep. Aug. 740, the Board disposed of the jurisdictional dispute complaint involving the Ironworkers, the Millwrights District Council of Ontario, and Millwrights, Local 1244 and 1592 as follows:

14. Accordingly, the Board granted the relief sought in paragraph 1 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.

15. Our order will be binding upon all the parties before us, including the employer, Comstock Canada, the Millwrights District Council of Ontario, Millwrights Locals t244 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.

16. We 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.

17. We 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.

18. In inpiant Contractors incorporated (Board File 2827-90-3D), 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.

19. The significance of the inpiant 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.

20. In their intervention, the Millwrights submit that the grievance herein is inarbitrable because the Ironworkers are asking the Board to enforce the order made in The State Group Limited, supra, and the Board is without jurisdiction to enforce its own orders, and that because the dispute raised by the grievance is a jurisdictional dispute it is not arbitrable as a grievance. The Millwrights submit that they are entitled to participate in this proceeding because an order; namely, the one made in The State Group Limited, supra, has been placed an issue.

21. The responding employer, E. S. Fox Limited, responds to the application as follows:

22. The responding party responds to the referral as follows:

The Responding Party ES. Fox Limited takes the position that the grievance is not arbitrable before the Ontario Labour Relations Board.

At all material times, the Responding Party ES. Fox Limited complied with the applicable collective agreements between the Applicant and the interested party and the relevant area practice as enunciated in Labour Relations Board decisions.

8. In support of its response, the responding party relies on the following material facts:

The Responding Party E.S. Fox Limited was hired by the owner on a time and mate­rials basis to provide men to install equipment provided by the owner and the manu­facturer at the owner, Atlas Tubes' Manufacturing operation in Harrow, Ontario. The Responding Party E.S. Fox Limited commenced layout work at the site as instructed by the owner with a crew composed of one Millwright, skilled in the perfor­mance of the operation of optical alignment equipment, name specified by the owner to perform the work. A Millwright Apprentice was engaged locally to assist in the work.

The Company was originally engaged to install and align production machinery com­prising an uncoiler, a forming and welding process mill and the related travelling cut off saw. The equipment involved is a production process mill and not a conveyor or material handling line. The owner used its own employees and employees of Moir Crane, members of the Ironworkers union, to off-load all of the equipment and move it into the building. On or about January 31, E.S. Fox Limited was asked to supply men to perform work that had previously been done by Moir Crane in what is known as the "bundler" area which involved the installation of approximately 150 feet of a conveyor system. All work in the bundler area was performed with a crew composed of equal numbers of Ironworkers and Millwrights, save and except for employees per­forming optical alignment work. All optical alignment work was performed by Mill­wrights. The Applicant Ironworkers were unable to provide qualified employees.

Further, at the hearing on April 22, 1994, E. S. Fox Limited submitted that, it is not bound by the decision and orders made in The State Group Limited, supra, and, further, that the work which is the subject of this grievance is not the same as the work in dispute in that case in any event. E. S. Fox Limited also submitted that, to the extent that the Ironworkers seek to have the orders in The State Group Limited, supra, enforced, the Court is the proper forum, not the Board.

8. The Ironworkers submits that the issue in this proceeding is whether E. S. Fox Limited has violated its collective agreement. The Ironworkers submits that the order made in The State Group Limited, supra, applies, but argues that this is not an enforcement proceeding as such, but rather a proceeding with respect to an alleged violation of a collective agreement.

9. Sections 126 and 93(1) of the Labour Relations Act provide that:

126.-(1) Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 45, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged vio­lation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

(3) Upon a referral undersubsection (1), the Board has exclusive jurisdiction to hear and deter­mine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 45 (6.3), (8), (8.1), (8.3) and (9) to (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(4) The expense of proceedings under this section, in the amount fixed by the regulations, shall be jointly paid by the parties to the Board for payment into the Consolidated Revenue Fund.

93.- (t) This section applies when the Board receives a complaint,

(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another; or

(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another.

It is not unusual for a construction industry grievance to raise what is essentially or substantially a jurisdictional dispute. The purpose of section 126 of the Labour Relations Act is to provide an expeditious mechanism for resolving collective agreement disputes in an industry where the nature of the work and the structure of labour relations often render ineffectual the usual arbitration pro­visions found in collective agreements. Section 93 of the Act is specifically designed to be the pri­mary means by which jurisdictional disputes are resolved. Consequently, while there may be cases in which it is not necessary or appropriate to do so, the Board will generally not arbitrate a griev­ance which raises a jurisdictional dispute until a jurisdictional dispute complaint has been filed and determined. Indeed, where a section 93 complaint has been filed or is contemplated with respect to the same assignment of work which is the subject of the grievance which has been referred to the Board, the Board will generally defer consideration of the grievance pending the resolution of the jurisdictional dispute. In determining that that is the appropriate way to proceed, the Board need not be satisfied that the resolution of the jurisdictional dispute will be completely dispositive of the grievance.

10. In this case, the Ironworkers grieves that E. S. Fox Limited has violated its collective agreement. That is a matter for arbitration. However, the basis of the grievance concerns an assignment of work which the Ironworkers alleges was improperly made. In other words, the griev­ance raises a dispute concerning an assignment of work; that is, a jurisdictional dispute. That juris­dictional dispute is between the Ironworkers and the Millwrights. Both legally and practically, sec­tion 93 of the Labour Relations Act provides a proper mechanism for resolving such a jurisdictional dispute (and such an approach to the fundamental issue raised by the grievance is consistent with the views expressed in C. U. P. E. v. CBC by the Ontario Court of Appeal (1990) 1990 CanLII 8078 (ON CA), 70 DLR (4th) 175, 38 GAC 231, 90 CLLC paragraph 14025) and the Supreme Court of Canada [19921 1992 CanLII 108 (SCC), 2 SCR 7. Fur­ther, even if this grievance could be characterized as an "order enforcement" proceeding, it is not at all clear that the Ironworkers could proceed to Court without first obtaining a Board Order under section 126, which in our view it cannot obtain without a determination of the jurisdictional dispute.

11. In the result, the Board is satisfied that this proceeding should be adjourned sine die pending the filing and disposition of a jurisdictional dispute complaint under section 93 of the Labour Relations Act. If no jurisdictional dispute complaint is filed within one year of the date hereof, and the matters in dispute between the parties are not otherwise resolved or disposed of, the grievance will be dismissed as having been abandoned.