International Brotherhood of Electrical Workers, Local 105 v. Jaddco Anderson Limited, 1996 CanLII 11214

Ontario Labour Relations Board

[1996] OLRB REP. MARCH/APRIL 249

1132-95-G International Brotherhood of Electrical Workers, Local 105, Applicant v. Jaddco Anderson Limited, Responding Party

BEFORE: M. A. Nairn, Vice-Chair, and Board Members Orval R. McGuire and G. McMenemy.

Appearances

Raj Anand, Brian Illion and John Grimshaw for the applicant; Roy Filion, Daryn Jeffries and Brian Timmins for the responding party; Chris G. Paliare and Steve Smillie for General Presidents' Maintenance Committee for Canada; F. G. Hamilton and Don Gerrard for Dofasco Inc.

DECISION OF THE BOARD; April 18, 1996

Decision

1This is an application under what is now section 133 of the Labour Relations Act, 1995 (the "Act"). The applicant ("Local 105" or "the trade union") has referred a grievance to the Board for final and binding determination.

2The grievance asserts that the responding party ("Jaddco" or "the employer") has failed to pay the proper wage rates and other benefits to employees and to the trade union in accordance with the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors' Association of Ontario and the International Brotherhood of Electrical Workers and the I.B.E.W. Construction Council of Ontario (the "Principal Agreement" or the "ICI agreement"). This assertion arises in connection with work being performed from and after March 13, 1995 on the #3 blast furnace at a project for Dofasco Inc. in Hamilton. The responding party asserts that the work in question was properly dealt with pursuant to the terms of the General Presidents' Maintenance Committee for Canada Project Agreement ("the project agreement"). This grievance inherently raises the issue of whether the work in issue is construction work or maintenance work.

3A hearing was convened to deal with two preliminary matters; an issue of standing, and an issue of production. The applicant and responding party, after some discussion with the panel, agreed to adjourn the issue of production and attempt to resolve that matter between themselves. The applicant acknowledged that an implied undertaking existed in respect of any documents produced; that they were for use only in this proceeding. That matter was adjourned. The applicant has since advised the Board that the matter remains unresolved. In light of the conclusion reached in this decision on the issue of standing, notice is to be provided to the G.P.C. of the hearing of that matter.

4The General Presidents' Maintenance Committee for Canada (the "G.P.C.") and Dofasco Inc. ("Dofasco") both sought to intervene in the proceeding. The granting of standing to either entity was opposed by the applicant and supported by the responding party. We received documentary evidence and certain background information not in dispute, and heard submissions on the issue.

5Both the G.P.C. and Dofasco rely on the project agreement to assert interests that they argue warrant the granting of standing. That project agreement is representative of the type of agreement that the G.P.C. has historically negotiated in respect of maintenance work. A review of the document identifies Sheafer-Townsend Maintenance Ltd. ("Sheafer") as the employer party to the project agreement, entered into with thirteen international trade unions covering maintenance, repair and renovation work for a project identified as Dofasco Inc., Hamilton. The parent international to Local 105, the International Brotherhood of Electrical Workers (the "I.B.E.W.") is one of those unions. There is no dispute that Local 105 is also bound to the project agreement.

6A meeting was held on May 29, 1995 in respect of the work in issue in this grievance. Representatives from the G.P.C., Local 105, Local 67 of the Plumbers and Pipefitters union, Dofasco, and Jaddco attended. The nature of the work was discussed. Local 105 took the position that the work in issue was construction and should be performed under the ICI agreement. The G.P.C. was of the view that the work was maintenance work. Subsequently, this grievance was filed.

7The work in issue is being performed by Jaddco. It appears to have been awarded directly by Dofasco. Notes of a meeting held May 29, 1995 indicate that Jaddco stated it had been awarded the work through a bid process conducted by Dofasco, and that Sheafer and other contractors had bid the work as well. Jaddco is signatory to a "Sub-Contractor Adherence Agreement" as of July 14, 1992, wherein it agrees to be bound by the terms of the project agreement between "The Committee" (referring to the G.P.C.) and Sheafer for the Dofasco project. The G.P.C. is placed in quotation marks here because it is a committee comprised of representatives of the international unions. The G.P.C. is not signatory to the project agreement, although through the adherence agreement, it purports to bind Jaddco to the project agreement.

8In its pleadings, the G.P.C. relied on its constitution to assert that the international unions have "empowered the Committee to act as the exclusive and irrevocable agent of the Member International Unions and of each Member international Union" with respect to matters falling within the G.P.C.'s jurisdiction. That jurisdiction includes endeavoring to bargain and secure maintenance agreements with employers or associations thereof, that undertake maintenance work in Canada.

9That constitution was not filed with the Board. Arguably, we do not have the constitution before us as fact. However, it is also acknowledged by the G.P.C. that, by the terms of that constitution, a member international union is only bound to a collective agreement negotiated by the G.P.C. in the event that the international union executes such collective agreement.

10The point of this discussion is to illustrate the lack of contractual interest held by the G.P.C. as opposed to its member international trade unions. The G.P.C. at its highest, acts as agent with respect to any contractual interest held by the signatories to the project agreement.

11However, the project agreement does require the G.P.C. to exercise certain responsibilities. The system that has developed over a substantial history in the construction industry contemplates a contractor being able to provide a guarantee of a minimum amount of maintenance work in respect of a particular project before the G.P.C. will consider entering into a maintenance agreement with that contractor. Once an agreement is reached, the G.P.C. is charged with interpreting and administering the maintenance agreement. The recognition clause of the project agreement provides, in part:

ARTICLE 3.000 - RECOGNITION

3.100 The bargaining unit under this Agreement shall comprise all employees of the Company, coming under the jurisdiction of the Union signatory to this Agreement, now employed and employed in the future for maintenance, repair and renovation work at the Owner's plant site.

3.200 The Company and the Unions:

3.202 Recognize the Unions as herein duly constituted for the purpose of bargaining collectively and administering this Agreement for the members of their respective Unions. The responsibility for interpretation and administration of this Agreement rest in the Committee.

3.203 Agree to bargain collectively with the Unions and to be governed by the terms of this Agreement and by all lawful settlements of disputes and grievances made pursuant thereto. On maintenance work, the Project Agreement shall govern terms and conditions and take precedence over local construction agreements or area practices.

12The scope of the work covered by the project agreement is set out at Article 5.000 of the agreement:

ARTICLE 5.000 - SCOPE OF WORK

5.100 The scope of this Agreement covers all work of a maintenance, repair and renovation nature, assigned by the Owner to the Company and performed by the employees of the Company covered by this Agreement, within the limits of the Owner's plant site.

5.200 The scope of this Agreement does not cover work performed by the Company of a new construction nature which is work required to erect new facilities in which event the work shall be done in accordance with existing building construction agreements.

13Definitions of the words maintenance, repair, and renovation are set out in Article 6.000 of the project agreement and Article 6.700 provides that:

6.700 The administration and interpretation of this Article is the responsibility and prerogative of the General Presidents' Committee for Contract Maintenance in Canada.

14The G.P.C. relies on Articles 3.202 and 6.700 to assert that the project agreement expressly allocates responsibility for the resolution of the question of whether work is maintenance or construction, and consequently whether it is to be performed under the project agreement or the ICI agreement, to the G.P.C. Further it notes that the committee is made up exclusively of representatives of the constituent international unions, and that therefore the decision as to which agreement will apply is within the hands of the unions, and not within the control of the employer. The G.P.C. also relies on this feature of the project agreement to assert that the work is properly characterized as maintenance, because the unions themselves have so agreed.

15Grievances from local unions, including Local 105, concerning the application of the project agreement to work being performed, have been referred to the G.P.C. for review and interpretation. The G.P.C. asserts in its pleadings that Local 105 did not formally refer this issue to the G.P.C. for determination and that it is required to do so by the terms of the agreement. At the hearing, in reply argument, counsel for the G.P.C. stated that the G.P.C. was not disputing the Board's jurisdiction to determine the issue.

16The G.P.C. acknowledges that, in the normal course, an arbitration proceeding such as this is a private dispute between the parties, and that strangers to that dispute ought not to be and are not permitted to intervene. It asserts a test for the exception to that rule as whether or not there is a sufficient nexus between the intervenor and the issues in dispute to warrant standing. That test, it argues, has been variously articulated; does a party have a direct connection with the issues in dispute; is the intervenor able to demonstrate it will be directly affected; or, can it demonstrate the necessary degree of interest. It argues that the trend has been to broaden rather than narrow the opportunity for intervention.

17In asserting a right to standing, the G.P.C. also relies on the fact that if the work is performed under the ICI agreement then the G.P.C. would lose monies payable to it under Article 29 of the project agreement; an amount in respect of a Maintenance Industry Administration Fund. It relies primarily on the decision in Petro-Canada, infra, in this regard and is asserting an interest on its own behalf. It also asserts that there is a potential for conflicting decisions, should this matter only be dealt with between the applicant and responding party. If the applicant herein is successful the G.P.C. asserts, another grievance could be filed under the maintenance agreement, asserting that the work in question was properly under that agreement. If the decision in that grievance found the work to be maintenance, there would be two conflicting decisions, and the only appropriate way to deal with that is to have all parties deal with the issue in one forum, at one time. The G.P.C. also argues that if the applicant is successful in its grievance, the other unions with members working on the same project will effectively and practically be bound by a decision of the Board interpreting the statutory language and ought to be entitled to participate.

18In its pleadings the G.P.C. asserts that it is agent for the I.B.E.W. which has standing as of right in the grievance filed, and that it ought to be granted standing on that basis. At the hearing, the G.P.C. did not appear to rely on this argument. We merely note that while we agree that the I.B.E.W. would have a right to intervene in this grievance, there is no evidence or suggestion that the G.P.C. has any authority to act as agent for the I.B.E.W. in matters arising under the ICI agreement. The evidence is that the G.P.C. only has authority to act as agent for the I.B.E.W. in respect of certain matters concerning the project agreement.

19Dofasco relies on the fact that it is the owner of the project on which the work is being performed, and highlights sections of the project agreement in support; which agreement is, of course, specific to Dofasco. It asserts that it has knowledge of the work being performed and that it will be directly affected by the outcome of the grievance both financially and in its relationship with its contractors. It does not rely on an "amicus curiae" status. It also recognizes that any expertise that Dofasco holds can be made available to the Board through evidence without the necessity of it being made a party to the proceedings.

20Dofasco also asserts that it has an interest in the public policy issue of whether the work is maintenance or construction; that the issue is going to be assessed in respect of work that is Dofasco's design and in a context of how Dofasco has had this work performed in the past. It asserts a considerable financial interest in the outcome of the question of how this work is to be characterized, but recognizes that a financial interest, in and of itself, is insufficient to warrant the granting of standing. However, it argues that the question of financing affects the way in which the work will be done, and thereby the characterization of the nature of the work both now, and for work in the future.

21Dofasco acknowledges that it is not bound to any collective agreement with any trade and is able to contract the work in question without regard to any collective bargaining relationship. Further, it acknowledges that Dofasco's prime focus is the characterization of the work, not the interpretation of any collective agreement.

22Dofasco relies on a number of cases that arise in the context of jurisdictional disputes in the construction industry. Jaddco supported the position of both the G.P.C. and Dofasco and also asserted that the Board ought to view this as a type of jurisdictional complaint and allow those unions performing the work under the maintenance agreement to participate and defend that opportunity.

23The applicant opposes the granting of standing on the basis that the G.P.C. and Dofasco are strangers to the ICI agreement. Any interest asserted by the G.P.C. either on its own behalf or on behalf of the unions bound to the project agreement, the applicant argues, is indirect or of a commercial nature and does not warrant the granting of standing. The applicant notes the private nature of arbitration proceedings, and, while acknowledging that certain persons may be entitled to standing in that private process, this is not that case. Nor are there reasons for the Board to exercise its discretion to grant standing.

24The applicant notes that there will be no effect on work opportunities here - the same local will be called upon to provide members to perform the work - there is no transfer of work as between unions, as might occur in a jurisdictional dispute. The applicant argues that the loss of the Administration Fund amount is in the nature of a commercial consequence and is not an interest recognized to warrant standing. The applicant also asserts that any decision on this grievance will affect only Jaddco and Local 105; only those parties will be bound by any decision of the Board, and the project agreement remains unaffected.

25Counsel for the G.P.C. in reply agreed that this is not a jurisdictional dispute. The G.P.C. acknowledges that there is no dispute that the unions are properly performing the work within their respective trades. The same people will continue to perform the work, albeit under a different collective agreement. All the unions bound to the project agreement are also bound to the ICI agreement for their respective trades.

26If the applicant is successful in asserting that this work is construction work properly covered by the terms of the ICI agreement, the effect will be that the members of Local 105 will continue to perform the work, for so long as Jaddco has the contract to perform the work, but under the terms of the ICI agreement. The G.P.C. asserts that that result will apply to all the unions performing work on the same project, and that all will be subject to the terms of the ICI agreement, in circumstances where only Local 105 is taking that position.

27The G.P.C. relies on a number of arbitration and court decisions to assert that the test for the granting of standing as of right was becoming broader. In addition it asserts that the Board has a discretion to grant standing in appropriate cases, and ought to do so here.

28In Ontario Hydro, [1992] OLRB Rep. Jan. 47, the applicant brought an unfair labour practice complaint against the responding parties as well as two grievances. The Labourers' union sought standing to intervene on the basis that certain of the work complained about had been assigned to it. The responding parties and the Labourers' took the position that the matters ought to be dealt with by way of a jurisdictional complaint. In deciding to allow the unfair labour practice complaint and the "mark-up" grievance to proceed as filed, the Board considered that the issues raised in those applications did not, at least for the purpose of liability issues, raise jurisdictional issues. The Board declined to hear the work assignment grievance, allowing the parties the opportunity to file a jurisdictional complaint.

29On the issue of standing, the Board did, as a matter of discretion, allow the Labourers' union the right to participate in the matters proceeding. Although citing the Ontario Court of Appeal decision in C. U.P.E. v. Canadian Broadcasting Corp., (1990), 1990 CanLII 8078 (ON CA), 70 D.L.R. (4th) 175, the Board did not make its decision on the basis of whether or not the Labourers' had standing as of right. The Board noted it might be called upon to interpret decisions or agreements made under the Plan for Settlement of Jurisdictional Disputes in Washington in order to decide whether or not the responding parties had abided by them. Those decisions or agreements were the result of a three-party process under the collective agreement which binds both unions. It was in light of that underlying three-party involvement in the collective agreement in issue that standing was granted. We note too that both unions were bound to the collective agreement in issue (the "EPSCA" agreement).

30In Master Insulators', [1980] OLRB Rep. Oct. 1477 the applicant was alleging, essentially, that the union responding party was continuing to refer workers to certain member employers, notwithstanding that a legal strike in respect of the ICI collective agreement was in effect. The responding parties took the position that the work in question was not construction work, but maintenance work, and was properly being performed under various maintenance agreements with the G.P.C. The G.P.C. relies on the decision as it participated in that proceeding and asserts that it has the same interest here.

31Inherent in the dispute was a question of whether the various maintenance agreements were an addendum to the ICI agreement or whether they were separate collective agreements regarding maintenance work. The Board noted that the complaint had been framed so as to include the various types of arrangements and conditions under which insulation work was being performed in Ontario, and was in the nature of a test case. No issue of standing was raised. In any event, apart from whether the work was construction or maintenance, the issue was raised as to the very nature and structure of the maintenance agreements - whether those agreements violated then section 133(1) of the Act (that there be only one provincial agreement) and therefore whether or not the maintenance agreements were null and void.

32The applicant here is not challenging the form or veracity of the project agreement - it acknowledges that that agreement properly exists in respect of maintenance work, and is separate and apart from the provincial agreement. The applicant is seeking to enforce the provincial agreement, an agreement to which the G.P.C. and the other trades are strangers. In Masters Insulators', the Board was also not dealing with the arbitration provisions of the Act. The matter arose under the strike provisions of the Act.

33In Bechtel Canada, [1978] OLRB Rep. May 401, the Board found that the U.A. had status to bring a request for reconsideration of a direction of the Board on an illegal strike application. The U.A. had not participated in the initial hearing, and the applicant and corporate responding parties took the position that the U.A. would not have been entitled to standing at the initial hearing and ought not to be allowed to bring a request for reconsideration of that decision. However, the broad words of the Board's cease and desist direction, that it affected any person having "notice of this direction" (emphasis added), caused the Board to conclude that the U.A.'s rights had been affected by the direction.

34The reconsideration application was to deal with the issue of whether someone could be bound to a direction of the Board in the absence of notice of the initial hearing and an absence of participation in that proceeding. It does not stand for the proposition, asserted by the G.P.C., that if someone is affected by a decision of the Board that warrants the granting of standing. The G.P.C. noted that the original decision in Bechtel Canada purported to bind the U.A., although it was not a party to the proceeding. The applicant herein asserts that any decision of the Board in respect of its grievance will not be binding on the G.P.C. or any of its constituent members, except the I.B.E.W. which is also bound to the ICI agreement and is part of its E.B.A. We note that the electricians' employee bargaining agency received notice of this matter.

35The G.P.C. relies on the decision in Canada Post Corporation, an unreported decision of Jane Emrich, dated June 28, 1993. The Professional Institute of the Public Service of Canada ("PIPS") filed two grievances. One alleged that persons not in the bargaining unit were performing work of the bargaining unit and sought a cease and desist order. The second grievance alleged that Canada Post had not remitted dues to the union on behalf of those persons performing the work (in essence asserting that the persons performing the work were, in law, employees of Canada Post and in the bargaining unit). Third party contractors sought standing to intervene.

36The intervenors acknowledged that if the issue only required an interpretation of the contracting out language in the collective agreement, then the contractors would not be entitled to standing. Their interests would be the same as Canada Post in that circumstance; reflected by the contractual relationship they shared. However they argued that they had an interest distinct from Canada Post's interest where the union was seeking to have persons they claimed as employees treated as employees of Canada Post. The contractors also took the position that, if granted standing, they would nonetheless not be bound by the results of the arbitration award, nor subject to any of the costs of the proceeding.

37In reaching a decision to grant standing to the contractors involved, the arbitrator relies heavily on the decision of the Ontario Court of Appeal in C. U. P. E. v. Canadian Broadcasting Corporation, supra. There was some disagreement between the parties before us as to the effect of that decision and the subsequent decision of the Supreme Court of Canada in the matter. The arbitrator in Canada Post concludes that the Supreme Court of Canada upheld the Court of Appeal on the "natural justice issue" (page 48), including the Court of Appeal's comments on the issue of standing. With respect, we disagree. The Supreme Court of Canada did not, in our view, uphold the Court of Appeal's comments in that regard. It agreed with the Court of Appeal that there had been a denial of natural justice in not providing notice to two other unions, in circumstances where the grievance inherently raised a jurisdictional dispute between the grieving union and those two unions. The Supreme Court of Canada then specifically stated that no further judicial disposition should be made at that stage.

38Having reviewed the CUPE v. C. B. C. decisions, the arbitrator in Canada Post concludes that "if the relief sought.. .would or could significantly affect the employment opportunities, contractual advantages, or property of those seeking to intervene, their entitlement to standing does not depend upon whether they would be legally bound by the arbitration award". If the comment is intended to mean, as asserted by the G.P.C. that where a person's employment opportunities, contractual advantages, or property would or could be significantly affected then they are entitled to standing "as of right", we disagree. The statement in our view is far broader than the cases relied on suggest, and ignore the primary, private nature of arbitration proceedings.

39That primary interest is highlighted by the dispute in Canada Post over costs. The contractors took the position that, if granted standing, they would not be responsible for any of the costs of the proceeding. The normal requirement is that those costs be shared between the parties to the agreement. This feature reinforces the private nature of an arbitration dispute. The adding of parties to a dispute invariably lengthens the proceedings, making them more costly. It seems an odd result that the primary parties ought to bear the entire responsibility for that increased cost, particularly in circumstances where the interest of the persons seeking to intervene is not direct and substantial.

40That is not to say that we disagree with the result in that case. PIPS was seeking an order that the contractors or employees thereof be treated as falling within its bargaining unit as employees of Canada Post. Those individuals and their employers would be directly and substantially affected by an award granting that relief. It would result in a transfer of work away from the contractors and the employees in question would not, for labour relations purposes, be treated as employees of the contractor. In that sense it is the same result as flowed in Petro-Canada Products, an unreported decision of Paula Knopf, dated January 24, 1990, also relied on by the G.P.C.

41The G.P.C also relies on the decision in Fanshawe College, (1991) 1991 CanLII 13424 (ON LA), 19 L.A.C. (4th) 162 (Brent), which is cited in the Canada Post decision. In that case the arbitrator concluded that where an employer was ordered to cease and desist from contracting out work, there would be an economic consequence to the contractor. However, that interest would not warrant the granting of standing in the grievance. In the arbitration proceedings, the interest of the employer and contractor are identical - both want the collective agreement interpreted in a manner to allow the contracting out. The contractor would also retain any commercial remedies against the employer for breach of contract. However, she concludes that in the case before her, the union was seeking relief which, if granted, would change the existing employment relationships between individuals performing the disputed work and their ostensible employer, the contractor. On that basis, she granted standing to the contractor.

42If Local 105 is successful in this grievance, there will be no altering of any employment relationship. Members of Local 105 will continue to perform the work for Jaddco for so long as Jaddco has the work. In this case, the interests of Jaddco, Dofasco, and the G.P.C. are the same. They each seek to have the work characterized as maintenance, and not construction.

43In a recent and as yet unreported decision, the Board, as a matter of discretion, granted standing to the Metropolitan Toronto Road Builders' Association ("MTRBA")in a grievance involving the Operating Engineers, Local 793 and Canadian Highways International Constructors ("CHIC") (Canadian Highways International Constructors decision of the Board dated December 21,1995) [now reported at [1995] OLRB Rep. Dec. 1417]. Local 793 and CHIC had entered into a Project Agreement covering work to be performed in the building of Highway 407.

44The grievance alleged that CHIC had not properly paid members of Local 793 for certain overtime work. The project agreement incorporated by reference the terms of local 793's agreement with the MTRBA, as well as other agreements involving other trades. The MTRBA sought standing on the basis that it was the MTRBA agreement that would in effect be interpreted by the Board and that therefore they ought to be entitled to participate. The Board found that the MTRBA had no standing as of right as neither it nor any of its members was bound to the project agreement which was the agreement in issue. Therefore they would not be affected by any decision of the Board as any decision would not be binding on them.

45However, the Board exercised its discretion to grant standing. The panel noted Article 6 of the project agreement which required CHIC to sub-contract work only to companies bound by the applicable Schedule A collective agreements, including the MTRBA agreement. The Board stated:

19. ... The critical factor which leads us to this conclusion is that of the desire to avoid multiple proceedings and to ensure, to the greatest extent possible, that Board proceedings remedy the question in issue.

As was observed by counsel for CHIC during argument, if the MTRBA is denied status to intervene, the decision in this proceeding will bind only Local 793 and CHIC, but not the MTRBA or any of its members. Work which is subcontracted to contractors bound by the MTRBA/LocaI 793 collective agreement may well deny the applicability of the Board's ruling to the work being performed. Ultimately, we are left with the situation where the Board's ruling in this proceeding may have little practical effect as it binds only CHIC, and not those entities which will actually be responsible for the performance of the work.

46The agreement in issue in this grievance is the ICI agreement. There is no underlying or otherwise incorporated agreement; nor is there any overlap between the ICI agreement and the project agreement. The terms of the project agreement are not being interpreted. While the manner in which that agreement has been applied in respect of different kinds of work may be relevant from an evidentiary perspective, that does not provide a right to standing.

47Harbridge and Cross, [1979] OLRB Rep. Apr. 313 involved a sector determination under then section 135 of the Act. The Board concluded that the issue of standing was to be determined from the words of the statute which referred to "the work performed or to be performed" on a site, and whether the person had a direct connection to the project. Standing was granted to employers and unions or councils of unions which held bargaining rights for employees on the project, and bargaining agencies which represented the employers, trade unions, or employees referred to. The G.P.C. seeks to assert a sector dispute analogy to argue that the Board in this case ought to first determine whether the work is construction or maintenance work. If it is found to be construction, then the G.P.C. has no continuing interest in the grievance and would participate no further.

48West York Construction, [1980] OLRB Rep. Jan. 119 also involved a grievance filed under what is now section 133 of the Act. The Labourers sought standing on the basis that the work in issue was work within the residential sector of the construction industry and was covered by a collective agreement to which it was a party. The applicant asserted that the work was covered by the ICI agreement. The Board noted that in the grievance proceeding between the applicant trade union and the employer, the Labourers' would not be entitled to standing. However, a jurisdictional complaint had been filed, and, the employer took the position that the matter required a sector determination under then section 135 of the Act prior to the grievance proceeding.

49At paragraph 8 the Board states:

8. As the Board indicated in the Napev Construction Limited case, [1979] OLRB Rep. Sept. 886, the proper parties in considering the merits of a grievance are those which are party to, or bound by, the collective agreement being grieved under. Accordingly, absent any consideration of section 135 it would appear that the intervener would lack status to participate in these proceedings. Section 135, however, does not concern itself with rights under a collective agreement but with "work performed or to be performed by employees". As the Board noted in the Harbridge and Cross Ltd. case, [1979] OLRB Rep. April 313, it follows from this that any trade unions, councils of trade unions, employers and employers' organizations which have a direct connection with the project on which the work is, or will be performed, have a sufficient interest to participate in the proceedings. In the instant case a number of employers, employers' organizations, trade unions and councils of trade unions, which have a direct connection with the Salvation Army Training Centre project, may well be affected by a determination as to which sector the work falls within, even though they would normally lack sufficient status to participate in a hearing as to the merits of the applicant's grievance. In these circumstances, we are satisfied that it would be appropriate to accede to the respondent's request and determine the issue of whether the work in question comes within the industrial, commercial, institutional sector pursuant to the provisions of section 135.

50In a sector dispute the Board considers the work in issue in order to determine in which of the defined sectors within the construction industry the work falls, and, only as a consequence, which collective agreement applies. The focus in the statute is on the work performed, and the Board has concluded that in those cases, all persons either performing or directing the work have a direct and substantial interest in the outcome of the dispute, and therefore ought to be given notice and granted standing if sought. There is, however, no equivalent provision in the statute for determining whether work is properly ICI work or maintenance work. The difference between a grievance and the sector determination is highlighted by the fact that the G.P.C. does not suggest that there is anyone else entitled to notice of this proceeding. While the G.P.C. might act as agent for the international unions, the local unions whose members are performing the work and other contractors on site would also be entitled to notice and standing if this were a sector dispute. In this case, the applicant asserts rights under its ICI agreement, independently of any rights held by others who are strangers to that ICI agreement. The statutory provisions for multi-party determinations (noticeably absent in respect of an issue as between construction or maintenance) reinforce the private nature of the arbitration proceeding under section 133 of the Act, particularly given the unique relationships and the statutory structure of province-wide collective bargaining in the construction industry.

51The G.P.C. argues that it will not be able to ignore the Board's decision with respect to whether the work is maintenance or construction because that will involve a statutory interpretation concerning work on the same project where the other unions are working. Any such decision would not be binding on the G.P.C. or other signatories to the project agreement. While any Board decision interpreting the statutory language concerning the meaning of "construction" may well have some bearing on how parties to the project agreement interpret that agreement, the same can be said for any party bound to any collective agreement covering construction or maintenance work. See generally Ontario Hydro, [1986] OLRB Rep. May 663 and the cases cited therein.

52In the absence of a sector or a jurisdictional dispute, a union would not be entitled to standing in the grievance of a different trade, where the assertion is that the employer has violated the trade's ICI agreement; notwithstanding the fact that that union might well have a keen interest in the issue of how the work was characterized. It would be free to ignore the results of the grievance of the other trade or it could seek to have the same result apply to it by filing a grievance under its ICI collective agreement with that same employer on the same project. There is nothing new or unusual about that situation. The coordinated effort of the signatories to the project agreement and their creation of an entity called the G.P.C. do not change that.

53The G.P.C. relies on Article 5.200 of the project agreement to argue that a grievance could be filed under that provision that might result in a conflicting decision if standing were not granted to it. Article 5.200 states that the agreement does not cover new construction, which work is agreed will be performed under the applicable construction collective agreement. The article forms part of the scope clause of the project agreement which provides that work performed under the agreement shall be maintenance, repair or renovation work as defined in Article 6. Article 6 gives the G.P.C. the responsibility and prerogative to determine whether work is maintenance. The only grievance arguably available under Article 5.200 is the assertion that work is construction and not maintenance. If the G.P.C. has the responsibility and prerogative to decide if the work is maintenance, we are hard-pressed to see how an arbitrator appointed under the grievance and arbitration provisions of the project agreement would have any jurisdiction to determine that the work was not maintenance, but construction. In other words, the only "grievance" available is one that would be determined by the G.P.C. itself.

54The G.P.C. argues that if the grievance is successful, it will lose the Administration Fund amount under Article 29 of the project agreement. That amount is paid on the basis of cents per hour earned under the agreement, and appears to exist to fund the G.P.C. in performing its responsibilities under the project agreement. Unlike a contractor who loses work when an employer has sub-contracted in violation of the collective agreement, the G.P.C. has no forum in which to pursue any claim for the loss of this amount. However, the very structure of the G.P.C. necessitates this result. It is a creation of the project agreement and the amount lost is in the nature of a commercial consequence.

55Dofasco is not bound to the project agreement. Nor is it bound to the ICI agreement. In the face of a decision determining this work to be construction, it has a number of options, including redesigning the work or having it performed outside this project agreement, subject perhaps to other commercial arrangements. The project agreement recognizes, at Article 5.300, that Dofasco is free to choose to perform or directly sub-contract work for any part or parts of the work necessary in its plant. Its interest in this dispute is, at best, indirect.

56We are of the view that neither Dofasco or the G.P.C. is entitled to standing as of right. Nor are there persuasive reasons why Dofasco ought to be granted standing as a discretionary matter. However, we are of the view that, as a matter of discretion, it is appropriate to grant standing to the G.P.C. The maintenance agreements entered into by the international unions and administered by the G.P.C. have long been a part of a collective bargaining system that has attracted work to the unionized construction industry for the benefit of employers, construction trade unions, and their members. The G.P.C. has been required to turn its collective mind to the issue of how work is to be characterized and has a long and unique perspective as representative of a number of trades in this regard. The remedy sought in this case, if granted, may have significant practical consequences to the integrity of that system.

57We therefore grant standing to the G.P.C. on the issue of whether the work is construction or maintenance work. Standing is not granted to Dofasco.

58This matter is hereby referred to the Registrar to schedule a hearing for the purpose of hearing the evidence and submissions of the parties with respect to any matters remaining in dispute. This panel is not seized.