[1994] OLRB Rep. April 496

1271-92-G Labourers' International Union of North America, Local 1036, Applicant v. The Corporation of the City of Sault Ste. Marie, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members F. B. Reaume and B. L. Armstrong.

APPEARANCES: S. B. D. Wahl and Win. Suppa for the applicant; Mark Contini and C. Roy Bernardi for the responding party.

DECISION OF VICE-CHAIR S. LIANG AND BOARD MEMBER B. L. ARMSTRONG; April 22, 1994

1This is a referral of grievance to arbitration, brought pursuant to the provisions of section 126 of the Labour Relations Act. At the time this matter came on for hearing, it involved approximately 52 separate grievances filed by the Labourers' International Union of North America, Local 1036 (referred to herein as "the Labourers" or "Local 1036"), between April and November of 1992. The parties have agreed to have the Board hear six of these grievances initially, in the hope that the disposition of these will be of assistance in resolving the remaining ones.

2On the first day of hearing, a representative of the International Union of Operating Engineers, Local 793 appeared. Mr. Edward Kaplanis stated that he wished it to go on record that Local 793 has an interest in these proceedings, and wished to reserve to his union the right to participate. Upon hearing the representations of the parties, it became apparent that the interest claimed by Local 793 was based on the fact that some of these grievances relate to contracts given by the Corporation of the City of Sault Ste. Marie ("the City") to companies which used members of Local 793 to perform the work. It also became apparent that the main issue underlying these grievances is the scope of the "sub-contracting" provision contained in the Labourers collective agreement with the City. Mr. Kaplanis stated that this issue does not concern Local 793 and he was therefore not seeking to participate until such point as it turns out his union's interests are affected. On this basis, the Board agreed to hear the six initial grievances, and left open the right of Local 793 to request standing at a later point in these proceedings (without deciding whether it ought to be granted such standing).

3The parties agreed that while the Board would remain seized of the rest of the grievances, this panel is not seized.

4On January 26, 1993, on the third day of hearing, a representative of the Canadian Union of Public Employees, attended the hearing. Mr. Ken Charsley continued to be in attendance for most of the rest of the hearing, but indicated that he was not requesting standing and was only present for the purpose of observation.

Introduction

5As indicated above, the main issue of contention underlying all of these grievances is the scope of the subcontracting provision found in the collective agreement. That provision reads:

20:01 The Employer agrees to engage only subcontractors who are in contractual relations with the Union.

6This collective agreement is the first one between these parties. The provision above was inserted into the collective agreement by the decision of a board of arbitration established pursuant to the provisions of section 40a [now 41] of the Act. In fact, the subcontracting provision was the only issue on which the parties failed to reach agreement by the time the first contract arbitration took place. As well, the issue of subcontracting was the focus of the union's application under section 40a for a first contract direction and the focus of the Board's decision made on September 9, 1991 to direct first contract arbitration.

7In a sense, therefore, the current disputes are an extension of disputes which have been outstanding between the parties since the commencement of collective bargaining, in 1989. The City has taken the position throughout that it is entitled to transfer work covered by the collective agreement to other employers. The Labourers have taken the position that any transfer of work may only be to other employers bound to its collective agreement. These positions predated the existence of the subcontracting provision before us. Today, the parties continue to take essentially the same stances, only now, it is advanced in the form of fundamentally irreconcilable interpretations of the subcontracting provision.

8The City asserts that the subcontracting provision only applies to those transfers of work where the City has initially itself acquired a contractual obligation to perform the work. In other words, only where the City has become a contractor bound by