Ontario Labour Relations Board

[1996] OLRB REP. MARCH/APRIL 185

0575-95-JD Iron Workers District Council of Ontario International Association of Bridge, Structural and Ornamental Iron Workers, Local 759, Applicant v. Asea Brown Boveri Inc., International Brotherhood of Boilermakers, Iron Ship Build­ers, Blacksmiths, Forgers and Helpers, Locals 128 and 555, Responding Parties

BEFORE: Jules B. Bloch, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: Gary Caroline and Larry Baillie for the applicant; Carl Peterson for Asea Brown Boveri; Michael A. Church and Steve Silversides for Boilermakers Local 128.

DECISION OF THE BOARD; April 22, 1996

1. This application concerns a complaint respecting an assignment of work. Pursuant to section 93 (now section 99) of the Labour Relations Act, the Board scheduled a consultation.

2. At the beginning of the consultation, the responding party International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Locals 128 and 555 ("Boilermakers") raised a preliminary objection requesting that the Board refuse to entertain the jurisdictional complaint raised by the applicant Iron Workers District Council of Ontario Interna­tional Association of Bridge, Structural and Ornamental Iron Workers, Local 759 ("Ironwork­ers"). The Boilermakers asserted that this matter had been decided under the Plan for Settlement of Jurisdictional Disputes ("the Plan") in which all parties participated and in which a final deci­sion had been rendered.

3. The parties referred the Board to section 91(13) and (14) of the Labour Relations Act, R.S.O. 1990, c. L.2:

91 (13) Where a trade union or a council of trade unions and an employer or an employers' organization have made an arrangement to resolve any differences between them arising from the assignment of work, the Board may, upon such terms and conditions as it may fix, postpone inquiring into a complaint under this section until the difference has been dealt with in accor­dance with such arrangement.

(14) The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and the trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of the tribunal.

4. The parties also referred the Board to section 93 (13) of the Labour Relations Act, R.S.O. 1990, c. L.2., as am. by S.0. 1992, c. 21:

93.- (13) Where a trade union or a council of trade unions and an employer or an employers' organization have made an arrangement to resolve any differences between them arising from the assignment of work, the Board may, upon such terms and conditions as it may fix, postpone inquiring into a complaint under this section until the difference has been dealt with in accor­dance with such arrangement.

5. The parties referred to article 6 of the Collective Agreement between the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (A.F.L.­C.I.O.-C.F.L.) and The Boilermaker Contractors' Association, Master Portion effective October 20, 1992 to June 30, 1995 ("Boilermakers Agreement") which reads, in part, as follows:

ARTICLE 6:00 - JURISDICTIONAL DISPUTES

6.01

(a) It is incumbent on all Contractors and Subcontractors to assign work in accordance with Contractors responsibility set forth in procedural rules and regulations for the plan for settlement of Jurisdictional Disputes in the construction industry (June 1984 edition or as amended).

(b) The Union shall utilize the procedural rules and regulations for the Plan for the settle­ment of Jurisdictional Disputes in the construction industry to the extent that it is sanctioned by the International Union.

(c) Subject to the above provisions, it is understood and agreed that jurisdictional dis­putes shall not be the subject of a grievance under this agreement, but shall be dealt with as provided herein.

6.02

Should an alternative Jurisdictional Disputes Tribunal acceptable to the Union and the Boilermaker Contractors' Association be established during the life of this agree­ment such tribunal shall be utilized in place of the above mentioned Plan.

6.03

When a jurisdictional dispute exists between unions and upon request by the Union, the Employer shall furnish the International Offices of the Union, a signed letter on Employer stationery, stating that Boilermakers were employed on specific types of work on a given project.

6. The parties also referred to article 19 of the Collective Agreement between Ontario Erectors Association, Incorporated and The Ontario Erectors Association and The International Association of Bridge, Structural and Ornamental Ironworkers and the Ironworkers District Coun­cil of Ontario comprised of Local Unions 700, 721, 736, 759, 765 and 786, ("Ironworkers' Agree­ment") which reads, in part, as follows:

ARTICLE 19— JURISDICTIONAL DISPUTES

19.1 Any jurisdictional dispute between the Union and any other building and construc­tion trades union, that involved any work undertaken by an Employer, will in no way interfere with the progress and prosecution of the work. The parties agree to abide by a decision of the Impartial Jurisdictional Disputes Board and/or the Ontario Labour Relations Board.

19.2 A prejob conference shall be convened at the request of either party.

7. On November 10, 1995 the Labour Relations Act, 1995 came into force. By virtue of section 3 of the Labour Relations Act and Employment Statute Law Amendment Act, 1995 proceed­ings such as this one in which no final decision issued on or before the coming into force of the Labour Relations Act, 1995 are to be decided under the provisions of the Labour Relations Act, 1995.

8. The parties were requested for their submissions in respect of the fact that section 99 of the Labour Relations Act, 1995 no longer includes a section similar to section 93(13) of the Labour Relations Act, R.S.O. c.L.2, as am. by S.O. 1992, c.21. The parties made additional submissions in respect of this point. The parties rely on section 99(3), 99(5) and 99(8) reproduced below:

9. …..

(3) The Board is not required to hold a hearing to determine a complaint under this section.

(5) The Board may make any interim or final order it considers appropriate after consulting with the parties.

(8) If a collective agreement requires the reference of any difference between the parties arising out of work assignment to a tribunal mutually selected by them, the Board may alter the bar­gaining unit determined in a certificate or defined in a collective agreement as it considers proper to enable the parties to conform to the decision of the tribunal.

9. The parties referred to the following decisions:

Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976

Stoney Creek Mechanical Limited, [1984] OLRB Rep. Dec. 1917

Copper Cliff Mechanical Contractors Ltd.,[1988] OLRB Rep. June 565

Groff& Associates Ltd., [1994] OLRB Rep. July 846

Boise Cascade Canada Ltd., [1992] OLRB Rep. Feb. 127

Saskatchewan Wheat Pool (1991), 1991 CanLII 13479 (ON LA), 22 LAC (4th) 129 (Solomatenko)

Canadian Airlines International Ltd. (1993), 1993 CanLII 16802 (CA LA), 32 LAC (4th) 359 (H.D.

Brown)

Valdi Inc., [1980] OLRB Rep. Aug. 1254

Cuddy Food Products Ltd., [1988] OLRB Rep. Aug. 768

The General Hospital of Port Arthur, [19861 OLRB Rep. Sept. 1218

Canadian Johns - Manville Company Limited, [1974] OLRB Rep. Jan. 2

Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915

Mcintosh Limousine Service Ltd., Air Cab Limousine Services (1985) Ltd., Aaroport Limousine Services Ltd. and Mr. Y. Zahavy, decision dated August 8,1994, unreported

Asea Brown Boveri Inc., November 15, 1994 (unreported)

Rasanen v. Rosemount Instruments Limited, CA. (1994) 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (Morden)

Ontario Hydro, [1993] OLRB Rep. May 442

Losereit Sales and Services Ltd., [1983] OLRB Rep. July 1090

John Craven, [1991] OLRB Rep. Aug. 969

Calorific Construction Limited, [1988] OLRB Rep. Feb. 115

Sheafer-Townsend Construction Limited, [1981] OLRB Rep. Nov. 1620

Schindler Elevator Corporation, [1990] OLRB Rep. Oct. 1092

Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501

Angle v. Minister of National Revenue (1974) 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544 (Spence)

Tandy Electronics Ltd. and United Steelworkers of America et al 1980 CanLII 1738 (ON HCJ), 1980 30 O.R. (2d) 29 (Van Camp)

Phil Benson and Labourers' International Union of North America and Stratt

Crossing Inc. and The International Association of Bridge, Structural and

Ornamental Ironworkers, [1955] P.E.I.J. No. 78 (QL)

Unless otherwise indicated the Board is referring to the sections as found in the Labour Relations Act, 1995.

10. The Board does not regard it as necessary to set out separately the submissions of the parties in great detail. The Board has carefully considered the parties' representations and the rele­vant jurisprudence in reaching its decision.

11. In our view the issue before the Board is the Board's role in supervising other Jurisdic­tional Dispute processes. It is clear that prior to the enactment of Bill 40, the Board interpreted what was then section 91(14) of the Labour Relations Act, R.S.O. c. L.2 in a very strict manner. Indeed, even when the Washington plan (a Jurisdictional Dispute process based in Washington) was not making decisions the Board held that 91(14) of the Labour Relations Act, R.S.O. c. L.2 precluded it from assuming jurisdiction. (see: Stoney Creek Mechanical Limited, supra; and Copper Cliff Mechanical Contractors Ltd., supra).

12. The repeal of section 91(14) of the Act in 1993 together with the repeal of subsection

93(13) of the Act in 1995 does not mean that the Board can or should no longer defer to other Jur­isdictional Disputes resolution mechanisms. The legislative history does not suggest a restriction on the Board's discretion in Jurisdictional Disputes. The Board is satisfied that the Legislature intended with the passage of Bill 7 and the new provisions, to continue to have a significant discre­tion in dealing with work assignment disputes. It is impossible to read section 99(5) in any other manner. Section 99(8) does not restrict this discretion; it merely gives explicit authority for particu­lar remedial relief. It also reflects the possibility that the parties, and the Board, will continue to sanction other mechanisms for dealing with Jurisdictional Disputes.

13. The case before us involves the same work that was the subject of a September 29, 1994 Plan Arbitration. An Arbitrator under the Plan held that:

(1) The Arbitrator had jurisdiction to hear the dispute.

(2) The Arbitrator awarded the Bark Fuel System and the Sludge Fuel System to the Ironworkers.

(3) The Arbitrator awarded the Combustor and the Day Bin to the Boil­ermakers because he found that the work was Boilermakers work as described in the 1928 Agreement of Record.

(4) The Arbitrator did not make an award in respect of the installation of the Fans because under the rules of the Plan completed work can not be the subject of a work assignment dispute.

14. The parties agreed that we have a discretion with respect to supervising parties' arrangements to resolve differences arising from the assignment of work. The parties also agreed that we should not inquire into the issue of the installation of the fans if that is the only part of the work assignment dispute that we would be prepared to adjudicate upon.

15. The parties agreed that the Ironworkers International, the Boilermakers International and Asea Brown Boveri Inc. (“A.B.B.") were stipulated to the Plan. (See Phil Benson, supra). The Ironworkers Local 759 however (the applicant) asserts that it is not stipulated to the Plan and therefore that arbitrators under the Plan do not have the jurisdiction to make findings against Local 759.

16. Further Local 759 assert that even if an arbitrator appointed under the Plan has jurisdic­tion to make findings against Local 759, this Board should intervene because of the unfairness of the system. The Local 759 argues that it was not allowed to participate directly in the arbitration, and had to participate through its International. Plan Arbitrators, in the Local 759's view, do not have the authority to order production of documents. Local 759 submits that the losing party, under the Jurisdictional Dispute Plan, is responsible for paying the Arbitrator's fees and expenses. Further Local 759 submits, the arbitrator is hampered by a relatively unsophisticated formula for determining the dispute. If there is a decision or agreement of record, it governs. If there is no decision or agreement of record, the arbitrator looks to whether there is a trade agreement. If there is, it governs. If there is no decision or agreement of record and no trade agreement, then the arbitrator looks at established trade practice and practice in the area with particular weight given to employer preference.

17. In the Ironworkers' Local 759 view, the above-noted hierarchical criteria undermines the unique quality of the Ontario trade jurisdiction reality. As a result, a decision of record result­ing from a dispute from any area of North America may simply be applied ~~holus bolus" in Ontario without any assessment of whether the application of the decision to the particular circum­stances is appropriate.

18. The Ironworkers Local 759 asserts that to preserve the public interest with respect to the stability in the construction industry in Ontario, the Board must closely supervise jurisdictional dispute arrangements. The Board must ensure, asserts the Ironworkers Local 759, that all private processes are fair to parties said to be bound to their decisions. The Ironworkers Local 759 asserts that the process pursuant to the plan did not afford them an appropriate measure of natural justice and consequently the Board should remedy that deficiency.

19. Both the Boilermakers and A.B.B. took similar positions in respect of this motion. They asserted that Local 759 was bound to the decision of the arbitrator under the Plan because of section 19.1 of the Ironworkers' Agreement. The Boilermakers and A.B.B. assert that the parties, pursuant to the Ironworkers' collective agreement, have a choice of forum. In the case before us, A.B.B filed notice of dispute with the Plan. The hearing on the merits was held on September 27, 1994. A decision was issued on September 29, 1994. The responding parties assert that on the basis of the principle of issue estoppel the Board should decline to entertain the jurisdictional dispute. The responding parties assert that at the very least, Local 759 is a privy of the Ironworkers' Inter­national and as such is bound to the Plan decision. (See: Rasanen v. Rosemount Industries Limited, supra; and Mcintosh Limousine Service Ltd., supra).

20. The responding parties' assert that there is nothing unusual about the practice and pro­cedure before Plan adjudicators. Although the practice and procedure is different than before the Board, but that does not make it any less fair. The parties stipulated to the Plan have all agreed to this procedure. Local 759, as a party to the Ironworkers collective agreement, has agreed to be bound by the decisions of adjudicators pursuant to the Plan. At the time Local 759, as an affiliated bargaining agent, entered into the Ironworkers' Agreement they knew or ought to have known about the Plan's practice and procedures.

21. Further Local 759 is an affiliate of the International and the International is stipulated to the Plan and consequently so is the Local. In the responding parties' view, an unfairness would be occasioned if the Plan adjudicator did not follow the Plan's practice and procedure. The prac­tice and procedure utilized by adjudicators appointed according to the provisions to the Plan, although different from the Board's, are not unfair.

22. The responding parties' note that although the Ironworkers' have raised an issue of bias against the Plan Arbitrator it was not raised before that arbitrator and consequently the Board should not inquire into that allegation without the Plan Arbitrator first ruling on the motion of bias.

DECISION

23. In our view Ironworkers Local 759, through the Ironworkers' Agreement, has agreed to be bound by a decision of the Plan. The decision rendered by the Plan Arbitrator follows the prac­tice and procedure outlined in the Plan for the Settlement of Jurisdictional Disputes in the Con­struction Industry. It is clear that the practice and procedure in the Plan is different than the prac­tice and procedure before this Board. In our view, parties of their own accord are entitled to make other Work Assignment arrangements which may involve different practices and procedures then those found at the Board. Section 99(3) and 99(5) when read together give the Board a broad dis­cretion about what inquiry, if any, the Board will undertake.

24. In this case, all the parties attending at the Plan, including Ironworkers' Local 759, were bound to the Plan decision. The Plan Arbitrator made a decision based on the identical work assignment that we have before us. The Court of Appeal in Rasanen v. Rosemount Instruments Limited, supra, held that where the question to be decided in a civil action is the same as that which is to be decided in an Employment Standards Act proceeding, the doctrine of issue estoppel may apply to the subsequent proceedings. The Court held that parties and their privies may be governed by the operation of the doctrine of issue estoppel even if the determination on the facts is made by a tribunal and notwithstanding that the privies were not parties at the earlier proceedings.

25. In McIntosh Limousine Services Ltd., supra, the Board, at paragraph 13 of the decision,

explains the policy reasons for its application of the doctrine of issue estoppel in an application pursuant to what was then section 91 [now section 96]:

13. The rationale for the principle of issue estoppel is self-evident. For the parties to any dis­pute, there is significant value attached to the finality of litigation between them. In my view, this is particularly true in labour relations matters, having regard to the continuing relationship between parties to many proceedings before the Board. Furthermore, it is an established princi­ple that the same party should not be forced to respond to the same claim in two (or more) pro­ceedings. Both of these public policy concerns (reflecting a desire to avoid duplicative litigation, inconsistent results, and unnecessary expense (both that of the parties and that of the state)) have been identified as pertinent factors for consideration by the Board in previous decisions (see, for example, Canadian General Electric Company Limited, [19789] OLRB Rep. April 384; Napev Construction Limited, [1980] OLRB Rep. June 862; and Ellis-Don Limited, [1992] OLRB Rep. Sept. 999) and, in an appropriate case, the existence of issue estoppel may well lead the Board to not inquire into the merits of an application. In that regard, I note, as an administrative tribunal, the Board is not bound to apply the principle of issue estoppel but has typically applied it to avoid the public policy concerns outlined above.

In my view the above policy reasons are helpful when considering exercise of discretion pertaining to section 99.

26. Local 759 is an affiliate of the International and the relevant collective agreement man­dates that the local be bound to all arbitration decisions made pursuant to the Plan, or made by this Board. We find that the work in dispute before us is the same work that was in dispute before the Plan Arbitrator. It is true that the practice and procedure before the Plan is different than the practice and procedure before the Board. In Rasanen v. Rosemount Instrument Limited, supra, at p. 280 the Court said the following in respect of different practices and procedures between Courts and administrative tribunals:

As long as the hearing process in the tribunal provides parties with an opportunity to know and meet the case against them, and so long as the decision is within the tribunal's jurisdiction, then regardless of how closely the process mirrors a trial or its procedural antecedents, I can see no principled basis for exempting issues adjudicated by tribunals from the operation of issue estop­pel in a subsequent action. If the purpose of issue estoppel is to prevent the retrial of "[amy right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction" (McIntosh v. Parent, supra), then it is difficult to see why the decisions of an administrative tribunal having jurisdiction to decide the issue, would not qualify as decisions of a court of competent jurisdiction so as to preclude the redetermination of the same issues: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 1991 CanLII 57 (SCC), 5CR. 5, 81 D.L.R. (4th) 121; Douglas/Kwantleen Faculty Assn. v. Douglas College, [1990] 3 1990 CanLII 63 (SCC), 5CR. 570,77 D.L.R. (4th) 94. On the contrary, the policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

The same may be said between labour board and Arbitration Panels.

27. The Board has a broad discretion in deciding whether or not to inquire into a particular jurisdictional dispute. Although the relevant collective agreement may allow optional avenues, to the Plan or to this Board, when a Panel adjudication under the Plan involving the same work has been decided, there would have to be an extremely good reason for this Board to interfere with the decision of the Plan adjudicator.

28. The Ironworkers Local 759 alleges breaches of natural justice by the Plan adjudicator as one reason we should inquire into the dispute. However, the matters complained of in this respect are parts or methods of an acceptable practice and procedure, and one process that has been agreed to by all parties stipulated to the Plan. The Board does not find them so troubling that it should provide a second forum here for dealing with the same complaint. The Ironworkers Local 759, through its International, has had the opportunity to address the issues of how the Plan should operate. If the Ironworkers Local 759 believes that the International has not acted in its best inter­ests it may pursue remedies elsewhere. Further, if the Plan and its practices and procedures cause such a great problem for the Ironworkers, one wonders why its collective agreement binds it to decisions of the Plan.

29. It is our view that section 99(5) gives the Board the jurisdiction to review or to decline to review decisions made under other work assignment arrangements. It is also our view that the Board should only exercise its discretion to review decisions pursuant to those arrangements in the rarest of circumstances. It is in the interest of all concerned that parties achieve tailor-made work assignment arrangements to suit their special labour relations needs, and that having done so, they live by them.

30. The Board dismisses this work assignment complaint, as all the matters in dispute have been adjudicated upon, and there is no good reason in these circumstances to inquire further into the complaint.