[1994] OLRB Rep. January 68
2455-93-G United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663, Applicant v. Sarnia Wolverine Manufacturing Ltd., Responding Party
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and G. McMenemy.
APPEARANCES: James Fyshe and Bob Humphries for the applicant; R. A. Werry for the responding party.
DECISION OF THE BOARD; January 31, 1994
I
This is a referral of a grievance to arbitration pursuant to section 126 of the Labour Relations Act ("the Act").
The responding party ("the employer" or "Sarnia Wolverine") has made a motion that the Board defer consideration of this grievance to allow Sarnia Wolverine to file a jurisdictional dispute complaint under section 93 of the Act. The applicant ("the trade union", "the U.A." or "U.A. Local 663") objects to such deferral and asserts, inter alia, that section 93 is not intended to apply to the present circumstances.
II
SUBMISSIONS
It is not disputed that Sarnia Wolverine was engaged to perform certain work at the Dow Chemical plant. That work has now been completed. The parties disagreed about the description of that work. Their disagreement about the nature of the work performed by Sarnia Wolverine provides some insight into the existing dispute.
The trade union characterizes the work performed as part of the renovation and upgrading of a piping system. The U.A. asserts the work was "removal and replacement" work. According to the trade union the work involved the removal of an old piping system, the drilling of inserts for the installation of a new pump, the rigging and setting of a pump and tank, and the fabrication and installation of new pipe used in the system. Although the employer employed members of U.A. Local 663 to fabricate and install the new pipe, it did not employ U.A. Local 663 members to remove the old piping system, drill the inserts, or to perform the rigging and setting. The trade union asserts this work is covered by the collective agreement to which Sarnia Wolverine is bound. Pursuant to the terms of that collective agreement the work should have been assigned to members of U.A. Local 663.
The relief claimed in the grievance by the trade union is for a declaration that Sarnia Wolverine has violated the applicable collective agreement, a direction that Sarnia Wolverine cease and desist from such violations and "payment of damages to U.A. Local 663 in an amount equal to the wages and benefits which would have been paid to employees of the company in the U. A. Local 663 bargaining unit had the provincial agreement not been violated". At the hearing counsel for the trade union estimated that the amount of damages involved approximately seventy-six hours of work
Counsel for the employer disagreed with both the trade union's characterization of the work and the number of hours involved in the performance of the work. Sarnia Wolverine asserts the disputed work is properly characterized as the "demolition" of a piping system and involved the employer in engaging employees to cut-up and throw into the garbage portions of pipe removed by those employees. The employer states that the work did not involve "removal and/or relocation" but rather was "removal for scrap" (or as counsel put it "removal into the garbage") and not removal for reuse or replacement. The system removed was replaced by an entirely different system which was installed by members of U.A. Local 663. The employer asserts that such removal for scrap is not covered by the collective agreement. It submits that in accordance with its own and local area practice the work was properly assigned to its employees who are general labourers. Sarnia Wolverine takes the position that the prevailing practice in the Sarnia area is for employers to assign this type of work to its complement of labourers. In addition the employer estimates that the work which forms the basis of the grievance involved approximately fifteen hours of work.
It is useful to set out both the collective agreement and statutory provisions which are applicable. Article 9 of the collective agreement states:
ARTICLE 9 - TRADE OR WORK JURISDICTION
9.1 The parties to this Agreement recognise that it is the employer's sole responsibility to assign work. The contractor shall not assign work contrary to existing area practices predicated on jurisdictional wording outlined in other trade Collective Agreements. The reference herein, to area practices and/or jurisdictional awards must be area practices and/or awards that have been accepted and practised on projects between Unions.
9.2 Jurisdictional disputes that may arise after the enforcement of this agreement shall be referred to either the Ontario Labour Relations Board (O.L.R.B.) or the Impartial Jurisdictional Dispute Board (I.J.D.B.) or a Successor Group, for a final binding decision.
9.3 Subject to the conditions contained in Clause 9.1 and 9.2 above, and subject to jurisdictional Agreements between the trades, decisions of record, and local area practice, this Agreement covers the unloading, distribution and hoisting of all equipment and piping for plumbing and/or pipe fitting systems, and the fabrication, installation and handling of all plumbing and/or pipe fitting and industrial process control systems including all hangers and supports. Without limiting the generality of the foregoing, this agreement covers the installation of new piping systems and related equipment, the maintenance and repair of all piping systems and related equipment, and the removal and/or relocation of all piping systems and related equipment for the purpose of renovation, retrofit, reconstruction, replacement or relocation. Where no work claim dispute exists, the original assignment of the above works shall be to the United Association.
Article 11, and Article 101 of the Appendix applicable to U.A. Local 663, place the following requirements on the employer:
ARTICLE 11- SUB-CONTRACTING
11.1 Recognizing that the Contractor can sub-contract, no Contractor shall directly or indirectly sublet or sub-contract or otherwise transfer to any employee or any other employer not signatory to a U.A. agreement any of the work coming under the jurisdiction of this agreement.
ARTICLE 101 - ZONE 5 SARNIA - LOCAL UNION HIRING
The Employer agrees that he will not hire anyone who is not a member of Local Union 663 for any work coming under the jurisdiction of U.A. and that no member of Local Union 663 will be hired without a work referral slip from the Union Office. The Union agrees that when it has no members available it will issue a work card to men deemed qualified by the Employer until such time as there are Local Union 663 men available who are capable of doing the work required by the Employer.
The relevant provisions of section 93 of the Act state:
93.- (1) 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.
Sarnia Wolverine submits that the issues raised in the grievance are in the nature of a jurisdictional dispute. It asserts that having established a prima facie case that this is a jurisdictional dispute the Board ought not to hear the grievance but should defer consideration of the section 126 referral to allow the filing and resolution of a jurisdictional dispute under section 93 of the Act. The employer argues that the fact that the labourers which it employs and to whom it assigned the work are not represented by a trade union or are not covered by a collective agreement does not alter the essential jurisdictional nature of this dispute. It is this fact, that Sarnia Wolverine labourers are not represented by a trade union and are not covered by a collective agreement, which make the present circumstances unique.
The position of Sarnia Wolverine in relation to the grievance is essentially twofold. Its principle assertion is that the work is not covered by the Provincial Collective Agreement to which it is bound together with U.A. Local 663. Both in the alternative and as a corollary to that position Sarnia Wolverine argues that if the work does fall within the parameters of the work jurisdiction of the union as set out in collective agreement, the work also falls within the trade jurisdiction of the "labourers trade" and has in the past been assigned by this employer to persons in the "labourers trade" without objection by the Union. Moreover, in the Sarnia area this work is routinely assigned by employers to their employee "labourers" regardless of whether such labourers are represented by the Labourers International Union of North America ("LIUNA") or not, without apparent complaint from the U.A. and notwithstanding that the employer may be bound to recognize the bargaining rights of the U.A..
Counsel asserts that in light of this practice (both this employers' own past practice and the area practice) it is evident that the root of this grievance involves the correctness of a work assignment, and that is what jurisdictional disputes are designed to resolve. The employer argues that in the circumstances therefore the resolution of the work assignment issue should include the participation of, and be binding on, all interested parties including in this case the unrepresented labourers employed by Sarnia Wolverine, the LIUNA whose members (it is asserted) have traditionally performed this work in the Sarnia area, and those contractors who have collective bargaining relationships with the LIUNA and the U.A. together with their respective designated employer and employee bargaining agencies. Whether or not this type of "demolition" work is covered by the U.A. Provincial Agreement is significant to each of these persons or parties and will affect ongoing relationships. Counsel on behalf of Sarnia Wolverine submits that it is therefore appropriate and necessary that all parties be before the Board to participate in the proceedings and obtain a ruling which, he states, will have a significant impact on the construction industry in the Sarnia area.
From a more technical perspective counsel for the employer argues that the language of section 93 does not limit its applicability only to disputes in which the employees to whom the work was assigned are represented by a trade union. (Similarly the statutory language does not limit its applicability to disputes between unions having collective bargaining rights with the employer. See for example Piggott Construction Limited, [1992] OLRB Rep. June 748). Counsel submits that the substance of this grievance is, to use the language of section 93(1)(a), that "a trade union [U.A. Local 663]... was or is requiring an employer [Sarnia Wolverine].., to assign particular work to persons in a particular trade union or in a particular trade, craft, or class [the U.A. or the plumbing craft] rather than to persons in another". In this instance the "another" is a "class" of unrepresented labourers employed by Sarnia Wolverine.
Counsel for the trade union submits that the purpose of the jurisdictional dispute provision of the Act is to resolve disputes and work assignment conflicts which involve the competing interests of competing trade unions or crafts. Where there are competing claims to the work and one trade union files a grievance which claims the work for its members, the other trade union has no standing to participate in the grievance procedure or arbitration process. The vehicle or mechanism for resolving what is then essentially a three party dispute is a jurisdictional dispute complaint filed pursuant to section 93 of the Act. That vehicle or mechanism however is not appropriate where, as here, there is no other third party complaining about the work assignment or claiming the work. Counsel argues that the employer cannot be "paternalistic" by in effect saying that the work is being "claimed" by the unrepresented labourers in its employ. He also notes that the Board has not in the past adjourned grievances which did not involve another trade union claiming the work.
Counsel for U.A. Local 663 submits that the issue raised by the grievance is whether the work falls within the jurisdiction of the union as defined in the collective agreement. That issue is properly addressed through the interpretation of the collective agreement. Counsel notes that the Board's jurisdiction to inquire into a jurisdictional dispute complaint filed under section 93 is discretionary. He urges the Board not to exercise that discretion in a manner which could "subvert" the purpose and intent of section 126 of the Act to provide an expeditious, less expensive resolution of construction industry grievances. He submits that the issues raised in this instance can be dealt with within the context of the grievance and the application and interpretation of the collective agreement which binds both parties. Any arbitral award arising out of this grievance would not bind any third party trade union such as the LIUNA. It is therefore neither necessary nor appropriate to require that this referral of a grievance be deferred so as to enable notice to be given to the LIUNA or to encourage their participation or those of any other party.
Finally, counsel for the union takes the position that the language used in section 93 indicates that this statutory provision does not apply to the present circumstances. In this regard counsel notes that U.A. Local 663 is not "requiring" the employer to assign particular work to it. Rather, U.A. Local 663 seeks merely to enforce the contractual obligations of the employer. In addition, counsel argues that the words "rather than to persons in another" must be read in context. Taken in context "another" cannot mean merely another group of persons. Similarly another "class" can not merely mean another group of persons, but must, having regard to the context and purpose of section 93, refer to an entity similar to the "trade" or "craft" entities which precede the word "class" in section 93. The work which underlies this grievance was not performed by another trade, or craft, or class of persons who could be similarly characterized. Rather the work was performed by an unrepresented group of general labourers outside of any bargaining unit.
III
DECISION
There is nothing in the statutory language used in section 93 which limits the applicability of that provision to instances where the work assignment dispute involves competing claims of trade unions on behalf of their members. The language does not require that the employees to whom the work was assigned be represented by a trade union or a craft before there can be said to be a "jurisdictional dispute". The statutory language refers specifically to persons in a "trade, craft or class". We do not agree that "class" must refer to an entity which is similar in nature to a trade union or a craft. Thus we do not accept the trade union's assertion that section 93 cannot be applied to the present circumstances.
This grievance arises out of a dispute about the correctness of the employer's work assignment. There is a dispute as to whether the work should properly have been assigned to members of U.A. Local 663 or to the employers' unrepresented labourers. There can be no doubt that if those labourers had been represented by the LIUNA or another trade union which asserted jurisdiction over this work, the preconditions set out in section 93 would be met. One trade union (the U.A.) would then be requiring the employer to assign particular work to persons in its particular trade union rather than to "other" persons or persons in another trade union. As counsel for the employer noted, those circumstances suggest a "classic" jurisdictional dispute. Having regard to the specific language of section 93 the fact that those "other" persons are not represented by any trade union does not affect the applicability of that section.
We do not accept the trade union's assertion that it is not "requiring" the employer to assign particular work to its members but seeks merely to enforce the terms of its collective agreement with the employer. In all of the circumstances the grievance filed by the U.A. and the relief requested is a demand by the trade union which in practical terms "requires" that the employer assign particular work to it. Commons sense indicates that given the way in which the construction industry operates, in practical terms the U.A. has made a demand for the work of the employer. An employer in the construction industry is unlikely to assign particular work, or to continue to assign particular work or future work, to another group of employees (whether represented by a trade union or not) in the face of such a grievance and thereby run the nsk that if the grieving trade union is successful it will in effect have paid twice for the work to be performed - both as wages to its employees and as damages to the grieving trade union. (For a similar analysis involving the subcontracting obligations of a general contractor where it subcontracts work to a contractor which
does not have a contractual relationships with the grieving union see Robertson Yates, [1992] OLRB Rep. Apr. 507).
To summarize therefore we are satisfied that section 93 can be applied to the circumstances of this case and that the Board has the jurisdiction to entertain the dispute as a jurisdictional dispute under the provisions of section 93. Having regard to the circumstances and the language of section 93(1) we are satisfied that there exists a jurisdictional dispute within the meaning of section 93(1). The U.A. was or is requiring the employer to assign particular work to persons in its particular trade or craft rather than to persons in another "class".
This conclusion however does not end the matter or dispose of the motion. The issue raised in the motion is not whether there exists a jurisdictional dispute or whether the Board has the jurisdiction to entertain the dispute between these parties as a jurisdictional dispute complaint under the provisions of section 93 of the Act. Neither is it an issue as to whether the Board will exercise its discretion under section 93(1) and actually entertain the dispute if filed. Our conclusion is only that the Board has the discretion to hear the dispute as a jurisdictional dispute complaint because the facts fall within the ambit and statutory language of section 93. The issue before us however is whether the Board should defer consideration of this referral of a grievance pending the filing and resolution of a jurisdictional dispute complaint which the employer has undertaken to file.
We commence consideration of that issue with the observation that prima facie a referral of a grievance should proceed unless there are good reasons why the adjudication of that grievance should be deferred until another matter has been resolved. Section 126 of the Act is intended to provide parties in the construction industry with an expeditious and relatively inexpensive means of resolving disputes. To defer consideration of a grievance to another matter can defeat that intended expedition.
Certainly the Board has the power to determine its own practice and procedure subject to the parties having an opportunity to present evidence and make submissions. That power includes the power to decide whether or at what stage of this proceeding the Board will determine to defer consideration of the grievance pending resolution of another matter.
The Board will not, as a matter of course or automatically defer the adjudication of a grievance pending the adjudication of a jurisdictional dispute complaint unless or until it is appropriate to do so. In this regard we note that the Board has on various occasions in the past exercised its discretion and refused to do so (see for example Schindler Elevator Corporation, [1990] OLRB Rep. Oct. 1092, Vic-West Steel Limited, [1991] OLRB Rep. Jan. 111, Ontario Hydro, unreported December 20, 1991, Board File 2627-90-G). In PCL Constructors Eastern Inc., [1991] OLRB Rep. Mar. 354 the Board commented on its practice with respect to the deferral of the consideration of a grievance stating at pages 355 and 356:
As the Board observed in Schindler Elevator Corporation, supra, the Board has, in the interests of labour relations stability, adopted a broad approach to jurisdictional disputes such that, once satisfied that it has the jurisdiction to do so, the Board will generally hear a complaint concerning work assignment on its merits as such. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dispute. When a complaint under section 91 [now section 93] is filed, or is contemplated, with respect to the same assignment of work which is the subject of the grievance which has been referred to it, the Board is faced with deciding how the dispute is best resolved. The purpose of section 124 [now section 126] is to provide an expeditious mechanism for resolving grievances in an industry in which the nature of the work and the structure of labour relations often renders ineffectual the kind of arbitration provisions typically found in collective agreements. On the other hand, section 91 is specifically designed to be the primary means by which jurisdictional disputes are to be resolved. Accordingly, although there may be circumstances in which it is not appropriate to do so, the Board will often defer consideration of a grievance until a (bona fide) jurisdictional dispute relating to the same assignment work has been resolved. When faced with that kind of situation, the Board has generally concluded that a grievance can constitute a demand for the work in question (Eaman Riggs Limited, [1978] OLRB Rep. March 228, Napev Construction Ltd. [1979] OLRB Rep. Sept. 886, Pre-Con Company (A Division of St. Mary's Cement Limited), [1981] OLRB Rep. July 947, Ontario Hydro, [1982] OLRB Rep. March 428). A jurisdictional dispute complaint need not be dispositive of a grievance before the Board will confer consideration of the latter………
- The Board's decisions in Schindler Elevator Corporation, supra, and Vic West Steel, supra, indicate that the Board is concerned about the direction that the jurisdictional dispute process before it has taken. We agree with the comments made in those decisions in that respect. It should be evident that the Board intends to give careful scrutiny to request that a proceeding be deferred or adjourned pending the disposition of a jurisdictional dispute. A party making such a request must satisfy the Board both that the matters in issue in a proceeding do raise a jurisdictional dispute and that it is appropriate for them to be determined under section 91 of the Act using the Board's jurisdictional dispute procedure before a section 124 referral, for example, is allowed to proceed. This does not mean that it will be the Board's general practice to either defer or not to defer to the jurisdictional dispute process. Each case merits individual consideration in that respect.
(emphasis added)
In this instance we are not satisfied that it is appropriate at this stage to defer consideration of the issues raised in the grievance, including those issues which may raise a jurisdictional dispute, to the jurisdictional dispute complaint process under section 93 of the Act. We are satisfied that the issues raised in the grievance can be dealt with through the grievance and arbitration proceedings. In particular we note that if the employer succeeds in its assertion that this work is not covered by the UA. Provincial Agreement to which it is bound, the grievance will be dismissed and, there being no other demand for the work in question, there would be no jurisdictional dispute within the meaning of section 93 of the Act. Thus, there are issues upon which the Board can adjudicate within the context of this referral of a grievance which may be dispositive of the jurisdictional dispute. Moreover, within the context of the grievance referral there are issues upon which the Board can adjudicate which do not involve jurisdictional dispute matters, and the resolution of those issues may mean that a jurisdictional dispute no longer exists.
It is true that if the employer's assertion that this work is not covered by the U.A. Provincial Agreement proves to be incorrect a jurisdictional dispute may continue to exist. That is to say there could continue to be a dispute between two competing groups of employees - one group consisting of persons in a particular trade union or in a particular trade or craft (the U.A.) and another group consisting of another class of persons (the unrepresented general labourers) - concerning the entitlement or claim of each group to the work. A finding that the work is covered by the U. A. Provincial Agreement however does not impair the ability of the Board to determine that dispute in the event the Board exercised its discretion to entertain any complaint filed under section 93. Indeed, an adjudication by the Board that the work in dispute is covered by the U.A. provincial agreement (and perhaps any other findings of fact which the Board may make in the section 126 referral) may assist the Board if it entertains a jurisdictional dispute complaint filed at some later point in time because it would be unnecessary then to relitigate the issue of whether the U.A. has any claim or entitlement to the work pursuant to the terms of the U.A. provincial agreement. The litigation of that issue may also be of assistance to these two parties in their presentation of their case if a jurisdictional dispute complaint is subsequently filed and entertained by the Board.
Notwithstanding the fact that the grievance may have jurisdictional implications, we
find that this dispute is primarily or essentially one regarding the interpretation of a collective agreement. The present circumstances do not disclose any reasons why this matter should be deferred to the jurisdictional process under section 93 of the Act. Indeed one could argue that the intent of section 93 is to fashion remedies which will lessen work assignment disputes in the construction industry. Certainly, in the past, the Board has adjudicated upon jurisdictional disputes primarily to resolve problems between trade unions, and to deal with issues where an employer contractor is faced with inconsistent and competing obligations to different trade unions. In the present circumstances the effective result of acceding to the employer's request to defer consideration of the grievance may be to increase the opportunity for jurisdictional disputes in the construction industry. The hearing of any grievance which involves an allegation that bargaining unit work was performed by persons who were not members of the bargaining unit could be delayed by reason of the employer's assertion that the grievance raises the spectre of a work assignment dispute between two competing groups or classes of employees. In instances where that dispute may be effectively adjudicated upon within the section 126 referral it is not appropriate to defer consideration of the 126 referral notwithstanding the jurisdictional overtones of the grievance.
On the basis of the material and submissions before us, and in the absence of any representations regarding this dispute from either the group of unrepresented labourers of Sarnia Wolverine who performed the work, or anyone else who may assert a claim to the work, we do not consider it appropriate to defer the grievance filed by U.A. Local 663.
This leads us to the issue of "notice" and the application and affect of the decision of the Supreme Court in Canadian Union of Public Employees v. Canadian Broadcasting Corporation et al, 1992 CanLII 8644 (ON CA), [1992] 91 D.L.R. (4th) 767 n. (S.C.C.) af'fg 1990 CanLII 8078 (ON CA), [1990] 70 D.L.R. (4th) 175. Counsel for the employer submitted that neither the group of unrepresented labourers employed by Sarnia Wolverine or the LIUNA had notice of these proceedings and therefore they had no opportunity to make submissions regarding the jurisdictional aspects of the grievance.
First we note that neither the union nor the employer referred to any of these groups as persons "who may be affected by the referral" in paragraph 2 of their application or response. The Board therefore could not provide notice to these "persons" as it had no knowledge of their purported interest. In keeping with its usual practice, and in light of the fact that the designated employee and employer bargaining agencies (EBA) are parties to the collective agreement the Board did give notice of this proceeding to those two entities. Neither EBA chose to participate in this proceeding.
In dealing with any referral of a grievance pursuant to section 126 of the Act the Board is adjudicating in its capacity as a Board of Arbitration. In arbitration proceedings it is the responsibility of the parties to ensure that notice of the proceeding is given to any other interested person. The Board of Arbitration would have no knowledge of any other person who has an interest in the proceedings or who may be affected by the proceedings unless it had been advised of that interest by the parties. Thus, in arbitration proceedings if either party considers it necessary or appropriate to give notice of these proceedings to any other "interested" or "affected" party the obligation to do so falls upon that party.
The parties did not make representations on the effect, if any, of the decision of the court in Canadian Union of Public Employees v. Canadian Broadcasting Corporation et al, supra. The parties have not addressed whether either the employer's unrepresented labourers, the LIUNA, or other contractors have a legal interest in this proceeding and/or whether they have status to intervene or standing to participate in this matter should they desire to do so. We therefore make no decision with respect to those issues.
In the result the employer's request that this referral be adjourned or deferred pending the filing and resolution of a jurisdictional dispute complaint under section 93 is dismissed. The Registrar is directed to list this matter for hearing. This panel is not seized.