Labourers' International Union of North America - Local 247 v. Ellis-Don Limited

[1997] OLRB REP. MARCH/APRIL 202

1257-94-G Labourers' International Union of North America - Local 247, Applicant v. Ellis-Don Limited, Responding Party

BEFORE: ChristopherAlberryn, Vice-Chair, and Board Members F B. Reaume and G. McMenemy

APPEARANCES: L. A. Richmond and V. Claro for the applicant; David C. Daniels and Brian Foote for the responding party.

DECISION OF THE BOARD; March 10, 1997

[1]. This matter concerns a construction grievance under section 133 of the Labour Relations Act, 1995.

[2]. The applicant seeks the payment of damages by reason of the respondent's failure to comply with its obligation to the applicant to assign certain work to its members. That assignment arises from the Board's determination of a jurisdictional dispute in the applicant's favour (Ellis Don Construction Ltd., [1995] OLRB Jan. 20). The referral of a work claim dispute to the Board is contemplated in the collective agreement between the parties (the provincial I.C.I. Labourers' agreement) at Article 8.01, which reads:

ARTICLE 8 - JURISDICTIONAL DISPUTES

8.01 When a work claim dispute arises between the Local Union and/or Council, which is a party to this Agreement, and any other Union, Person or Organization, which cannot be settled to the satisfaction of all parties concerned, such dispute shall only be processed as a complaint under Section 93 [now Section 99] of the Ontario Labour Relations Act. In the meantime, work will continue as assigned to the Labourers by the Employer unless otherwise directed by the Ontario Labour Relations Board.

Preliminary Objection

[3]. On the first day of hearing of this application the respondent sought, as a preliminary objection, to have the application dismissed, so it argued, because Article 2.06 of the collective agreement precluded any entitlement by the applicant to damages.

[4]. A majority of the Board (Board Member Reaume dissenting) made an oral ruling in favour of the applicant at the time.

[5]. The respondent relied upon Article 2.06 of the agreement. That article reads as follows:

2.06 (a) Schedule "E" to this Collective Agreement constitutes a list of work that is claimed by the Union.

(b) Where work within Schedule “E" is claimed by the Union and is within the ICI. Sector and there is no work claim dispute within the meaning of Article 8.01 the work will be assigned to employees represented by the Union.

(c) In the event an Employer is found to have violated the provisions of 2.06(b) above the Employer shall re-assign such work to employees represented by the Union and no claim for damages will be made.

[6]. The respondent claimed that the effect of Article 2.06(c) is to deprive the applicant of any entitlement to claim damages. For the purpose of the argument only, the respondent accepted that it had violated Article 2.05, i.e. it had engaged a subcontractor not bound by the Labourers' agreement; the work fell within Schedule "E"; the work was within the I.C.I. sector; there was a work claim dispute within the meaning of Article 8.01 up to February 1995; the work was never assigned, nor re-assigned, to the applicant or to workers represented by the applicant; and the applicant received no work, nor any damages from the respondent.

[7]. The applicant argued that the waiver of damages referred to in Article 2.06(c) did not apply because its damages claim was not founded upon Article 2.06(b). The applicant's claim is found in the provisions of Article 2.05. It reads as follows:

2.05 The Employer agrees to engage only subcontractors who are in contractual relations with the Union and/or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an ICI. General Contract except as provided in Schedule "D" hereof.

[8]. The applicant argued alternatively that, to the extent that Article 2.06 was relevant to its claim (which it disputed), a condition precedent for the application of the limitation upon damages contained in Article 2.06(c) was absent. Without deciding upon the applicability of Article 2.06 as a whole to the applicant's claim for damages, a majority of the Board (Board Member Reaume dissenting) accept this alternative argument. Article 2.06(c) has meaning only to the extent that the provisions of Article 2.06(b) apply. The employer must have been found to have violated Article 2.06(b) for the waiver of damages to apply. Thus, the prior question, is whether the respondent was found to have violated the provisions of Article 2.06(b).

[9]. For Article 2.06(b) to apply, three pre-conditions must exist. The applicant must have claimed the work referred to in Schedule "E" of the agreement. That condition obtains here. Secondly, the work must fall within the I.C.I. sector. That is common cause between the parties in this case. Thirdly, there must be no work claim dispute within the meaning of Article 8.01. That last condition is absent in this case because there was a work claim dispute at all times material to the applicant's claim, and that work claim