Ontario Labour Relations Board
Between: United Brotherhood of Carpenters and Joiners of America Local 1030, Applicant v. IWA-Canada, Local 1-1000 and Tembec Forest Products (1990) Inc., Responding Parties
Before: S. Liang, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.
Appearances: N. L. Jesin for the applicant; David Wright, Kelly Waddingham and Mike McCarter for IWA-Canada, Local 1-1000; David C. Daniels for Tembec Forest Products.
Decision of the Board; January 25, 1995
Reasons for Decision
1This is an application for interim relief brought pursuant to the provisions of section 92.1 of the Labour Relations Act. The applicant seeks interim relief pending the disposition of two related applications, a complaint of unfair labour practice (also referred to as "the section 91 complaint"), and a complaint concerning work assignment (also referred to as "the section 93 complaint").
2After hearing and considering the submissions of the parties and reviewing the materials filed in this application, the Board ruled orally on January 19, 1995 to dismiss the request for interim relief. These are the reasons for that determination.
3The applicant (also referred to as "the Carpenters") represents a bargaining unit of employees of Tembec Forest Products (1990) Inc. (now known as Tembec Inc.). In the recognition clause in the most recent collective agreement, the bargaining unit is described as "all employees working at the Planing Mill Division at Mattawa, Ontario..." The IWA-Canada, Local 1-1000 (also referred to as "the IWA") also represents a bargaining unit of employees of Tembec, which is described in its collective agreement as "all employees of Tembec Forest Products (1990) Inc., Mattawa Sawmill Division, Mattawa, Ontario..." There are about 25 persons in the Carpenters' bargaining unit and about 100 in that of the IWA.
4The employees represented by the Carpenters work at the company's planing mill. Two kilometres away from the planing mill is the sawmill, whose employees are represented by the IWA. The company has recently made a decision to consolidate the operations of the two facilities, and move the operations of the planing mill (essentially one machine and the work associated with it) to a building (known as the "Dimension Plant") at the sawmill.
5The effective date of the transition will be on or about January 30th. The company has informed the Carpenters that five employees will remain at the planing mill for the near future, ten employees will be laid off and ten employees will move to the new planing operations in the Dimension Plant. The company takes the position that the ten employees who move to the new planing operations will be covered by the IWA collective agreement. It takes the position that the recognition provisions in the two collective agreements are site-specific and that upon re-location of operations from the planing mill to the sawmill, the Carpenters agreement ceases to apply.
6The Carpenters take the position that its collective agreement covers all planing operations of the employer, irrespective of the specific location at which the planing work is performed. The IWA takes the same view as the employer, that any operations located at the sawmill facility (which will after January 30 include planing operations previously located at the other facility) are covered by its collective agreement.
7It appears that certain employees at the Dimension Plant have been engaged in planing work over some number of years, represented by the IWA. The Carpenters assert that they only recently discovered this fact (this is disputed by the IWA, but for the purposes of this decision, we will assume this is true). At present there are about six of these employees. It is anticipated by the company that after January 30th, these six employees will continue to do work in connection with the planing machines, supplemented by ten persons moved from the planing mill.
8When the Carpenters were informed of the employer's plans, it filed a grievance, alleging that all planing operations, including the work to be moved from the planing mill to the Dimension Plant, were covered by its collective agreement. This grievance was referred to arbitration, and on January 9th, the parties appeared before an arbitrator who, after hearing submissions on certain preliminary matters, has reserved his decision.
9The Carpenters filed a complaint of unfair labour practices against the IWA in connection with these events which was dismissed by the Board (differently constituted) on January 10th. On January 12th, this application and the complaints under section 91 and 93 of the Act were made.
10The parties are all agreed that the proper mechanism through which to resolve at least part of the dispute between them is the section 93 complaint which has been filed, although they obviously differ as to its merits (we say "at least part" since the applicant clearly sees an unfair labour practice element to these events as well). Before the arbitrator, the employer urged a deferral of the arbitration pending the filing and determination of a work assignment complaint to this Board. Before the panel of the Board on January 10th, the IWA agreed to file a section 93 complaint in the absence of one from the Carpenters. The Carpenters have now filed its section 93 complaint. Certainly, it appears to the Board that the parties would all benefit from an expeditious resolution of that matter. The employer and the IWA have agreed, in order to facilitate that end and since it is clear that the section 91 and section 93 complaints will be listed for hearing together, to abridge the time for filing their responses on the section 91 complaint. The consultation with respect to the section 93 complaint has now been scheduled to take place starting on February 7, 1995.
11In this application the applicant has requested, on an interim basis, (a) an order that the employer be prohibited from relocating the operations of the planing mill to the Dimension Plant and (b) in the alternative, an order that all work in connection with planing (including any work previously done by members of the IWA) be assigned to members of the Carpenters.
12The Board has developed its approach with respect to interim relief applications over a number of decisions, and it is unnecessary to review these in detail. In J.C.V.R. Packaging Inc., [1993] OLRB Rep. Nov. 1145 the Board stated:
In the Board's previous cases dealing with interim orders, the Board has discussed the place of interim relief in the context of alleged unfair labour practices: see, for example, 810048 Ontario Limited c.o.b. as Loeb Highland, [1993] OLRB Rep. March 197; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. (unreported). The Board has said that interim relief is warranted where it may serve to "neutralize the potential impact of an alleged unfair labour practice" (see Tate Andale Canada Inc.), preserve the right of the union to a meaningful remedy should the complaint be upheld (see Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 342) or preserve a "status quo" in order to provide some stability within which litigation over labour relations disputes may proceed (see New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited, [1993] OLRB Rep. Aug. 783).
Within this context, the Board's determinations under section 92.1 involve applying a two-step inquiry. Firstly, the Board assesses, on the basis of the materials before it, whether there is any apparent merit to the complaint which forms the basis for the request for interim relief. In this assessment, the Board in no way makes a finding or determination as to the actual merits of the complaint - that is for the panel which hears the complaint to decide. Rather, the Board takes a preliminary view of the matter in order to assess whether, assuming that the facts relied upon by the applicant are true, the applicant has shown an arguable case for the relief sought in the main complaint.
The second assessment that I must make is whether assuming the applicant has shown an arguable case, the harm in not granting interim relief outweighs the harm of granting it, such that it would be more consistent with the purposes of the Act, the exercise of the rights under the Act, and the purposes of interim relief, to grant the orders requested.
13In the section 91 complaint, the Carpenters allege that the company is in violation of sections 65 and 68(1) of the Act in transferring the planing operations from the planing mill to the Dimension Plant and assigning the work under the IWA collective agreement. In support of this allegation, the union sets out, among other things, the history of its bargaining rights, and the practice of the employer in the performance of planing work. Nowhere is it alleged that the company is acting with an improper motive in undertaking this transfer of its operations. Indeed, the remedy requested in the section 91 complaint is not a prohibition of the transfer, but essentially, an order that the work in dispute in the section 93 application be assigned to members of the Carpenters.
14In these circumstances, whether or not the section 91 case meets an "arguable case" standard, it is evident that the real dispute between the parties relates to the proposed assignment of work. Ultimately, as is evident from the remedial request in the section 91 complaint, the Carpenters are not concerned about where the planing operations take place - they simply wish to preserve their claim that the work falls under their collective agreement. Indeed, in submissions, counsel for the Carpenters states that the Carpenters do not question this employer's right to make determinations about the most efficient manner of running its operations, and this is why they have not sought any permanent prohibition of the transfer of operations. This supports our assessment of the nature of the conflict facing these parties. To the extent that the real dispute is a contest between the Carpenters and the IWA over the work to be re-located, we find it appropriate to assess the merits of the interim relief application in the context of that dispute. If there is any merit to the section 91, we see it as only an adjunct to the main concerns of these parties.
15We therefore turn to a consideration of the request for interim relief against the context of the section 93 application. We are satisfied on a review of the material before us and the submissions of the parties, that there is an arguable case that the Carpenters ought to be assigned the planing work in the Dimension Plant. Clearly, the determination of the work assignment dispute will have to have regard to the dispute between the parties over the interpretation of the recognition clauses of both collective agreements. There may also be a dispute as to the past practice of this employer. But these are matters which another panel will have to weigh and assess. For our purposes, we are satisfied that there is sufficient apparent merit to this application for the purposes of providing a basis for interim relief.
16However, we are not convinced that the balance of harm favours the applicant on either of the two alternative interim orders sought. The first is the request to prohibit the employer from moving the planing operations pending the main application. As we have indicated above, the applicant does not challenge the employer's right to transfer the operations in the main application. It simply seeks to ensure that its bargaining rights follow the move. In this context, what is being sought is a deferral of the move. The applicant has not shown any reasons why it will be prejudiced by the transfer taking place as planned, instead of at the completion of the main application. On the other hand, the employer has entered into certain commercial commitments which may be jeopardized by any delay.
17The second alternative, interim order requested is that the Board order the assignment of the work in dispute in the section 93 application to the members of the Carpenters. We begin our consideration of this with the comment that the nature of a typical work assignment dispute is quite different from most other conflicts which come before the Board. Where one side wins by "gaining" some work, the other side correspondingly loses the same work. It is difficult to see how the harm or prejudice that one side suffers by not having the work until the merits of a section 93 application are determined, outweighs the harm or prejudice to the other side if the work were re-assigned by the Board on an interim basis.
18In this case, the applicant relied on the Board's decision in Sayers & Associates Limited, Board File No. 0068-91-G decision dated August 29, 1994, unreported, to say that there is a possibility that even if it eventually succeeds on the section 93 application, its members may never recover the financial loss they have suffered by wrongfully being deprived of the work in the interim. However, it acknowledges that the same would hold true for the members of the IWA if the Board were to grant the interim relief requested and order a re-assignment of the work from members of the IWA to members of the Carpenters.
19The applicant does not ultimately characterize its submissions as going to a "balance of harm" test. Rather, the applicant asserts that in a context of a disputed work assignment, the Board's task in an application for interim relief should be to maintain the ''status quo" pending the hearing of the merits. In this case, the status quo is that the parties have generally understood the Carpenters' bargaining rights to extend to the planing operations of the employer, and the IWA bargaining rights to extend to the sawmill operations. It would be in keeping with the status quo for the Board to order that all planing operations at the Dimension Plant will be performed by members of the Carpenters on an interim basis.
20The other parties agree with the general proposition that the Board ought to look to the status quo (although, as indicated above, the employer takes issue with the Board's application of section 92.1 to a work assignment dispute). However, they vigorously disagree with the applicant about what the status quo entails.
21We do not find that appeals to the status quo assist the applicant in this case. First, in this particular context, the manner in which each union characterizes the status quo cannot be separated from its view on the merits of the section 93 application, for their references to the status quo are based on their views of their historical claims to the work in question. For the Board as well, this is a reason why this concept has limited utility in the present circumstances, since those are precisely the types of issues that will be determined in the main application. Second, the Board's references in decisions on interim relief to preserving the status quo are based on broader labour relations concerns. The status quo does not have independent value in itself. The Board may intervene to preserve a status quo because in doing so, it protects the exercise of rights under the Act, or provides labour relations stability. In the case before us, it is not clear that intervening on an interim basis will further those goals any more than not intervening. Indeed, it may very well be that the nature of many work assignment disputes is such that they are unlikely to give rise to the sorts of problems which the Board has sought to address in those cases where it has provided interim relief under section 92.1.
22The company takes the position in any event that the Board cannot, because of the presence of section 93(8) of the Act, apply section 92.1 to work assignment disputes. Section 93(8) states:
93.- (8) Where a complaint is made under sub-section (1) and the complainant alleges that a strike is imminent or is taking place by reason of the requirement as to the assignment of work or by reason of the assignment of work, the Board may, after consulting any employer, employers' organization, trade union or council of trade unions that in its opinion is concerned, make an interim order with respect to the assignment of the work that it in its discretion considers proper.
23The company states that because section 93(8) provides a mechanism for an interim assignment of work in a pending work assignment proceeding, the Board's powers to order interim relief under section 92.1 do not apply here. The Board has no jurisdiction, in other words, outside of section 93(8), to order interim relief in a pending section 93 application. It is not apparent to us that section 92.1 is unavailable here. Certainly, the language of section 92.1 is very broad and pertains to any proceedings under the Act. We do not have to determine this issue, however, since we have decided in any event that no relief is warranted.
24For these reasons, the Board dismissed the application for interim relief.