[1994] OLRB Rep. July 836
0243-94-JD The Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 598, Applicant v. Labourers' International Union of North America, Local 1059 and Dafoe Floor Concrete Construction Ltd., Responding Parties
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: N. L. Jesin for the applicant; John Moszynski and Jim McKinnon for Labourers' International Union of North America, Local 1059; no one appearing for Dafoe Floor Concrete Construction Ltd.
DECISION OF THE BOARD; July 15, 1994
- This jurisdictional dispute complaint was scheduled for consultation to be held on July
14, 1994. By letter dated July 13, 1994 counsel for the applicant ("Operative Plasterers") requested leave of the Board to withdraw its application. On July 14, 1994 counsel for the responding trade union ("Labourers") indicated that the Labourers opposed the request to withdraw and submitted that the Board should proceed with the consultation, determine this matter on its merits and direct that the work in dispute be properly assigned to the Labourers. In the result, we heard the submissions of both counsel with respect to this issue.
We have carefully considered the submissions of both parties particularly insofar as each raised competing "policy" concerns in support of their respective positions. We do not propose to detail those able submissions. It is sufficient to note that pursuant to section 91(1.1) the Board has a discretion in these matters as it "may consult with the parties affected by the complaint to resolve any matter raised by the complaint or may inquire into any matter raised by the complaint, or may do both".
When confronted with an opposed request to withdraw an application of this nature, the Board exercises its discretion depending on the particular facts and circumstances with which it is faced. Thus, for example, in E.S. Fox, [1990] OLRB Rep. May 504; J. R. Mechanical, [1991] OLRB Rep. Aug. 999 and Inplant Contractors Incorporated, (unreported decision dated October 5, 1992, Board File No. 2827-90-JD) the Board granted leave to an applicant to withdraw a jurisdictional dispute complaint or otherwise terminated a jurisdictional dispute and exercised its discretion not to inquire into a complaint. On the other hand in Vic West Steel, [1993] OLRB Rep. Mar. 256; Steen Contractors Limited, [1986] OLRB Rep. May 677 and Comstock Canada, [1993] OLRB Rep. Aug. 740, the Board refused a party's request to withdraw and refused to dismiss or otherwise terminate a jurisdictional dispute complaint, and instead exercised its discretion by continuing its adjudication of the dispute over a work assignment as requested by one of the parties.
In all of the circumstances of this case we have determined not to grant leave to the applicant to withdraw this application. The applicant has stated that its request to withdraw is not to be construed as a concession that it no longer claims entitlement to the work which it had been assigned. The grievance which has been filed by the Labourers and which underlies this jurisdictional dispute has not been resolved or dealt with. It is clear that the two trades are still in dispute over the correct assignment of the work. It is equally clear that the Canadian Plan for the Settlement of Jurisdictional Dispute in the Construction Industry ("the Plan") has not, and will not, determine the merits of this dispute because the work has long since been completed. It is not clear whether the Labourers are stipulated to the Plan or have otherwise agreed to be bound by the decisions of that Plan in respect of this matter. Certainly, it is clear that the terms of the Labourers' collective agreement pertaining to the industrial, commercial, and institutional sector of the construction industry obliges that union to pursue jurisdictional dispute complaints or complaints with respect to the assignment of work before this Board.
It is clear that this Board has the jurisdiction to hear this complaint. In our view, given the current provisions of the Labour Relations Act and the expeditious manner in which this Board is now able to deal with jurisdictional dispute complaints in the construction industry, the Board should hear those complaints where a dispute over the correct assignment of the work continues to exist unless there are compelling reasons not to do so.
In the circumstances of this case there has not been any determination with respect to the work assignment dispute, although that dispute continues to exist. Moreover, it is not clear what, if any effect the procedural determinations which have been made by arbitrator Robert Belanger pursuant to the provisions of the Plan will have, or are intended to have, upon the Labourers' grievance against the employer Dafoe Floor Concrete Construction Ltd. There is some suggestion from the Operative Plasterers (and perhaps the employer Dafoe Floor Concrete Construction Ltd.) that the hearing of that grievance may not, or should not proceed given the provisions of the Plan and Mr. Belanger's decision. If that is the case, the result would be to prevent the Labourers from pursuing their claim to damages as a result of the alleged improper assignment of the work, while at the same time precluding the adjudication of the work assignment dispute (notwithstanding the fact that there has not been any determination of the merits of that dispute and the Labourers and Operative Plasterers each continue to claim the work.
In all of the circumstances we are persuaded that leave to withdraw this complaint should not be granted. In so doing we agree with and adopt the decision of the Board in Comstock Canada, supra, particularly paragraphs 4 and 5 of that decision.
This matter is referred to the Registrar for the scheduling of a consultation in this matter pursuant to the provisions of section 91 of the Act.
This panel is not seized.```