International Association of Bridge, Structural and Ornamental Iron Workers, Local 721 v. Ryco Alberici, 1997 CanLII 15523

[1997] OLRB REP. SEPTEMBER/OCTOBER 926

4242-96-JD International Association of Bridge, Structural and Ornamental Iron Workers, Local 721, Applicant v. Ryco Alberici and International Union of Operating Engineers, Local 793, Responding Parties

BEFORE: D. L. Gee, Vice-Chair, and Board Members W N. Fraser and G. McMenemy.

APPEARANCES: David McKee and Mike Coleman for the applicant; Bruce Binning, Larry Eller and Tom Taylor for Ryco Alberici; S.B.D. Wahl for International Union of Operating Engineers, Local 793.

DECISION OF THE BOARD; October 31, 1997

1. The style of cause is hereby amended to reflect the correct name of one of the responding parties: "Ryco Alberici".

2. This matter is an application concerning a work assignment under section 99 of the Labour Relations Act, 1995 which was scheduled for consultation on October 9, 1997.

3. The work in dispute is all work in connection with the operation of a number of cranes and forklifts used at the Chrysler Assembly Plant in Brampton in connection with the removal and reinstallation of equipment required for a new production assembly line. The operation of the larger pieces of machinery was assigned to the International Union of Operating Engineers, Local 793 ("Local 793") while the operation of the smaller pieces of machinery was assigned to the International Association of Bridge, Structural and Ornamental Iron Workers, Local 721 ("Local 721"). Each union claims the work assigned to the other.

4. The very work in dispute in this application was the subject of a decision rendered on or about March 26, 1997 by Arbitrator Knight under the Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the "Plan"). Representatives of the International Union of Operating Engineers, the International Association of Bridge, Structural and Ornamental Iron Workers and Ryco Alberici appeared at the arbitration hearing. Local 721 did not attend the arbitration hearing nor did it authorize the International Association of Bridge, Structural and Ornamental Iron Workers to appear on its behalf. As set out in greater detail below, Local 721 made it clear, in advance of the arbitration hearing, that it did not consider itself bound to the Plan and would not be bound by a decision rendered by an arbitrator under the Plan.

5. Local 793 and Ryco Alberici assert that the Board ought not to entertain this application on the basis that a decision has already been rendered under the Plan. Local 721 asserts that, as it is not stipulated to the Plan, it is not bound by a determination rendered by the Plan and the Board should proceed to entertain its application.

Status of the Plan to Intervene

6. At the commencement of the consultation, counsel was present on behalf of the Plan and advised the Board that the Plan wished to intervene. As the Plan had not been given notice of the Board's proceedings it had not filed an intervention. Counsel indicated that the Plan had a right to intervene because the Board's decision would impact on the Plan's ability to render final and binding decisions. Alternatively, counsel indicated that the Plan should be permitted to intervene on the basis that it could be of assistance to the Board. If granted standing to intervene, the Plan would require an adjournment in order to prepare. Local 793 and Ryco Alberici supported the Plan's request for standing to intervene. Local 721 opposed the request.

7. The Board ruled orally that the Plan would not be granted intervenor status. In our view, the Plan was not entitled to intervenor status as of right as it did not have a real direct discernible interest in the proceeding. Nor were we persuaded that the Plan should be granted amicus curiae status as, in our view, its participation was not necessary in order to ensure that all relevant issues were properly presented.

Whether Local 721 is stipulated to the Plan

(i) The Facts

8. The following facts were relied upon by the parties in the course of argument concerning whether the Board ought to entertain this application.

9. There is no issue that the International Union of Operating Engineers and its Local 793 and Ryco Alberici are stipulated to the Plan.

10. There is no issue that the International Association of Bridge, Structural and Ornamental Iron Workers is stipulated to the Plan.

11. In April, 1996, the Board rendered a decision reported as Asea Brown Boveri Inc., [1996] OLRB Rep. Mar/April 185. In Asea Brown, the Board determined that the Iron Workers District Council of Ontario International Association of Bridge, Structural and Ornamental Iron Workers, Local 759 ("Local 759") was stipulated to the Plan. At paragraph 26 of the decision, the Board stated as follows:

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.

The collective agreement referred to by the Board is the Iron Workers' Provincial ICI Agreement. It provided 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 work. The parties agree to abide by a decision of the Impartial Jurisdictional Disputes Board and/or the Ontario Labour Relations Board.

12. Article 19 of the Iron Workers' Provincial ICI Agreement was amended in the last round of collective bargaining such that it now provides as follows:

ARTICLE 19-JURISDICTIONAL DISPUTES

19.1 Any jurisdictional dispute between the Union and any other building and construction trades union, that involves 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 Ontario Labour Relations Board.

13. The Constitution of the International Association of Bridge, Structural and Ornamental Iron Workers stipulates in Article IV entitled "Jurisdiction" that: "the above claims are subject to trade agreements and decisions of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry or the Building and Construction Trades Department." Article XXII entitled "District Councils" provides in section 2 as follows:

Sec. 2. It shall be mandatory for all Local Unions to affiliate with the different Councils of the various departments of the American Federation of Labour-Congress of Industrial Organizations or Canadian Labour Congress, which are representative of their respective branches of the trade.

14. The preamble to the Procedural Rules and Regulations for the Plan provides:

These procedures shall apply to:

B. All National and International Unions affiliated with the Building and Construction Trades Department, AFL-CIO, and their local constituent bodies.

15. The Plan itself provides as follows:

ARTICLE I

SCOPE OF APPLICATION

The procedures shall apply to:

(b) All unions affiliated with the Department.

16. On January 24, 1997, Local 721 filed a grievance against Ryco Alberici concerning the work in dispute. Ryco Alberici referred the matter to the Plan on February 27, 1997. On February 28, 1997, the Plan Administrator, Phil Benson, wrote to the International Association of Bridge, Structural and Ornamental Iron Workers, the International Union of Operating Engineers and Ryco Alberici acknowledging the request of Ryco Alberici and indicating that "all parties are stipulated to the Plan". On February 29, 1997, Local 721 referred the grievance to the Board pursuant to section 133 of the Act. On March 3, 1997, Local 721 wrote Mr. Benson and advised that it was not stipulated to the Plan and the Plan could not commence proceedings. On March 4, 1997 Local 793 filed an intervention into Local 721's referral of grievance to the Board asserting that the matter was inarbitrable as the grievance was a jurisdictional dispute and all parties were stipulated to the Plan. On the same day, Local 721 and Ryco Alberici entered into an agreement pursuant to which Local 721 withdrew its referral to the Board and indicated that a jurisdictional dispute application would be filed with the Board. On March 6, 1997, Ryco Alberici withdrew its referral of the matter to the Plan.

17. On March 6, 1997, Local 793 wrote to Mr. Benson indicating that a jurisdictional dispute existed between Local 793 and Local 721 and requesting that his office proceed to arbitrate the issues in dispute. On March 11, 1997, Local 721 wrote James Phair, the International Representative of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, and advised him that Local 721 "refuses to participate in any proceeding before the Plan." Mr. Phair was instructed not to participate in proceedings before the Plan in any way and was instructed not to make submissions on behalf of Local 721. Local 721 referred to the fact that the Iron Workers' Provincial Agreement, to which the International is a party, was amended in the last round of negotiations to remove any reference to the Plan. The letter to Mr. Phair was copied to Mr. Benson.

18. On March 17, 1997, Local 721 filed the instant jurisdictional dispute with the Board. By letter dated March 19, 1997, Local 721 advised the International of such and further indicated that "Local 721 will not under any circumstances agree to proceed before the Plan."

19. On March 24, 1997, an arbitration hearing was held pursuant to the Plan. Present at the hearing were representatives of the International Union of Operating Engineers, the International Association of Bridge, Structural and Ornamental Iron Workers, and Ryco Alberici. In a decision rendered by Arbitrator Knight on March 26, 1997, it is indicated that "all three parties to the dispute agreed they were stipulated to the Plan". Arbitrator Knight determined that the contractor's assignment should not be disturbed.

(ii) Relevant Jurisprudence

20. In addition to the Asea Brown decision discussed above, the parties referred the Board to the following jurisprudence. In the case of' Delta Catalytic Industrial Service Limited, [19961 OLRB Rep. Mar/April 233, the employer objected to the Board's entertaining a grievance filed by the International Brotherhood of Electrical Workers, Local 353 ("Local 353") under the Electrician's Provincial ICI Agreement on the basis that the subject matter of the grievance had earlier been decided by a panel of the General Presidents' Maintenance Committee (the "GPC") under the terms of the General Presidents' Maintenance Committee Project Agreements (the "GPA"). The decision summarizes Local 353's argument as to why it was not bound by the decision reached by the Committee at paragraph 24 as follows:

24. Local 353 asserted that the GPC process under the GPA could not bar its right to arbitration. Local 353 asserted that it was not a party to the GPA. In its view it had no right on [sic] authority to launch grievances under the GPA. tt was, contended Local 353, the international unions that set up this mechanism to block arbitrations, and consequently Local 353 should not be considered to be bound by a decision of a panel of the GPC.

21. The Board determined that Local 353 was bound by the decision of the GPC on the basis that it had initiated the process, fully participated therein and took no issue with the GPC's ability to adjudicate the dispute until after a final decision had been rendered. Further, Local 353 had participated in the GPC process in the past and accepted that it was bound to the result. In such circumstances, the Board determined that the GPC's decision resolved the dispute and terminated the grievance proceeding. The Board made no determination as to whether Local 353 was bound to the GPC process as a result of the involvement of its international. Delta Catalytic is distinguishable from the facts of the instant case wherein Local 721 has never accepted the ability of the Plan to adjudicate its disputes and has never participated in any fashion in its proceedings.

22. In the case of Benson v. Labourers' International Union of North America et al. (1995), 1995 CanLII 17985 (PE SCTD), 131 Nfld. & P.E.I.R. 311; 408 A.P.R. 81 the Prince Edward Island Supreme Court considered the issue of whether Strait Crossing Inc. ("SCI"), a contractor involved in the construction of the link between New Brunswick and Prince Edward Island, was stipulated to the Plan. A jurisdictional dispute had arisen between the Labourers' International Union of North America (the "Labourers") and the International Association of Bridge, Structural and Ornamental Iron Workers ("Iron Workers"). Both unions were stipulated to the Plan. An arbitrator under the Plan ruled that the work should be assigned to the Iron Workers. The Labourers and SCI were of the view that the arbitrator lacked jurisdiction as the contractor was not stipulated to the Plan. The Plan administrator applied to the courts for a mandatory order directing the Labourers and SCI to abide by the arbitration award.

23. Prior to the arbitration hearing, both the Labourers and SCI wrote letters in which it was asserted that SCI was not stipulated to the Plan. The arbitrator dismissed the correspondence because, in his view, the parties had submitted to his jurisdiction. This fact was disputed by both the Labourers and SCI. Mr. Justice Ghiz dismissed the relevancy of the issue as follows:

In any event, I need not delve into the accuracy of this matter because it is clear to me the arbitrator could not assume jurisdiction on his own. In short, he could not assume jurisdiction unless that jurisdiction had been voluntarily conferred on him by the parties. The arbitrator's jurisdiction must come from the parties' voluntary adherence or stipulation to the Plan prior to the dispute in question.

24. Mr. Justice Ghiz then reviewed the provisions of the Plan which stipulate that employers become stipulated to the Plan by: signing a stipulation setting forth that they are willing to be bound; being a member of a stipulated association of employers with authority to bind its members or; being parties to a collective agreement providing for the settlement of disputes under the provisions of the Plan. SCI had not signed a stipulation nor was it a member of an employers' association that had the authority to bind it to the Plan. The collective agreement between SCI, the Labourers and the Ironworkers did not stipulate SCI to the Plan. As a result, it was determined that SCI was not stipulated to the Plan and the application was dismissed.

25. The Plan then appealed the Trial Court's decision dismissing its application to the Prince Edward Island Supreme Court (Appeal Division). In Benson v. Labourers International Union of North America (1996), 1996 CanLII 10267 (PE SCAD), 142 Nfld. & P.E.I.R. 81; 445 APR. 81 (hereinafter referred to as the "PEI case") the Plan argued that the Trial Court was required to show deference to the arbitrator's decision that SCI was stipulated to the Plan and should not have interfered with such decision unless it was patently unreasonable. The Supreme Court rejected the Plan's argument on the basis that the question as to whether SCI was stipulated to the Plan was a question concerning the arbitrator's jurisdiction and accordingly correctness, rather than reasonableness, was the proper standard of review. The Supreme Court determined that the trial judge did not err in concluding that the arbitrator was incorrect in deciding that SCI was stipulated to the Plan and dismissed the appeal.

26. Finally, the parties referred the Board to the case of The Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry; by its Administrator Philip Benson v. Labourers' International Union of North America, Local 1208 (1997), 1997 CanLII 16076 (NL SC), 151 Nfld. & P.E.I.R. 247; 471 A.P.R. 247 (Nfld. SC) (hereinafter referred to as the "Newfoundland case") in which the Plan was seeking a mandatory order directing Local 1208 to abide by the decision of a Plan arbitrator and to cease pursuing its grievances to arbitration. Local 1208 resisted the application on the basis that it was not stipulated to the Plan. The Newfoundland Supreme Court determined that Local 1208 was stipulated to the Plan and granted the order sought. Given that the Labourers' International Union of North America is stipulated to the Plan (see the PEI case) it would appear that the facts of the Newfoundland case are similar to those of the instant case.

27. The oral decision rendered by Mr. Justice Lang indicates that he considered: the terms of the Plan; the Procedural Rules thereto; the Constitution of the Building and Construction Trades Department AFL-CIO; the Constitution and Bylaws of the Newfoundland and Labrador Building Construction Trades Council; the Hibernia Construction Agreement; the Labourers' International Union of North America Constitution; and the Uniform Local Constitution of the Labourers' International Union of North America.

28. In determining that Local 1208 is stipulated to the Plan, Lang J. relies on the decision of Ghiz J. in the PEI case, trial division, as authority for the proposition that local unions are stipulated to the Plan by virtue of the above documents (see paragraphs 12, 32 and 34 of the Newfoundland decision). With the greatest of respect, we are unable to see how the PEI case can be cited as such an authority. First, only international unions were parties in the PEI case. There was no issue that they were stipulated to the Plan. The issue as to whether any union, let alone a local union, was stipulated to the Plan did not arise. Further, the quote from the PET case which Lang J. relies on for his assertion that Ghiz J. found the unions to be stipulated to the Plan is in fact a quote from the text Canadian Labour Law, (2nd Ed.) The quote from Canadian Labour Law is a paraphrasing of the Plan document itself. The fact that the Plan document states that various entities are bound does not make it so. Finally, it is apparent from an exchange that took place between Lang J. and counsel during the course of the oral ruling that Lang J. was unclear as to the distinction between the Labourers' International Union of North America and the Labourers' International Union of North America, Local 1208. It would appear that Lang J. was of the mistaken impression that Local 1208 had participated in the Plan before. From the comments made by counsel, it would appear that it was in fact the International that had participated and not Local 1208. As a result, we do not find the Newfoundland decision to be helpful to our determination of the issue before us.

(iii) Relevant Statutory Provisions

29. Local 793 referred 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.

30. Local 793 also referred to the following subsections of section 99 of the Labour Relations Act, 1995:

99. . . .

(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.

31. Finally, Local 793 referred to the following "Bill 80" provisions

145. (1) In sections 146 to 150,

"constitution" means an organizational document governing the establishment or operation of a trade union and includes a charter and by-laws and rules made under a constitution; ("acte constitutif")

"jurisdiction" includes geographic, sectoral and work jurisdiction; ("juridiction")

"local trade union" means, in relation to a parent trade union, a trade union in Ontario that is affiliated with or subordinate or directly related to the parent trade union and includes a council of trade unions; ("syndicat local")

"parent trade union" means a provincial, national or international trade union which has at least one affiliated local trade union in Ontario that is subordinate or directly related to it. ("syndicat parent")

147. (1) A parent trade union shall not, without just cause, alter the jurisdiction of a local trade union as the jurisdiction existed on May I, 1992, whether it was established under a constitution or otherwise.

(2) The parent trade union shall give the local trade union written notice of an alteration at least 15 days before it comes into effect.

(3) On an application relating to this section, the Board shall consider the following when deciding whether there is just cause for an alteration:

1. The trade union constitution.

2. The ability of the local trade union to carry out its duties under this Act.

3. The wishes of the members of the local trade union.

4. Whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems.

(4) The Board is not bound by the trade union constitution when deciding whether there is just cause for an alteration.

(5) If a local trade union makes a complaint to the Board concerning the alteration of its jurisdiction by a parent trade union, the alteration shall be deemed not to have been effective until the Board disposes of the matter.

(iv) Argument

32. Local 793 asserts that Local 721 is stipulated to the Plan either in its own right or as a result of the actions of the International. Alternatively, Local 793 asserts that Local 721 is a privy of the International such that issue estoppel applies. In any event, Local 793 urges the Board to exercise its discretion and decline to entertain Local 721's application.

33. In support of its assertion that Local 721 is stipulated to the Plan in its own right, Local 793 submits that it has already been determined in the PEI and Newfoundland cases that local unions are stipulated to the Plan.

34. Local 793 further asserts that Local 721 is stipulated to the Plan in its own right as article XXII of the Constitution of the International Association of Bridge, Structural and Ornamental Iron Workers mandates that all locals must be a member in the Building and Construction Trades Department of the AFL-CIO. The Constitution further stipulates in article IV that jurisdictional claims are subject to decisions of the Plan. Article I of the Plan provides that it applies to all unions affiliated with the Department. Local 793 submits that the combination of mandatory membership in the Department and the Plan applying to all locals in the Department means Local 721 is stipulated to the Plan. The Board was advised that the international unions sign a separate document stipulating themselves to the Plan.

35. With respect to the fact that the Iron Workers' Provincial ICI Agreement was amended in the last round of negotiations to remove any reference to jurisdictional disputes being submitted to the Plan, Local 793 asserts that the language in question was simply a vestige of sections 93(13) and (14) of the Labour Relations Act, R.S.O. 1990, c.L.2. Following the repeal of sections 93(13) and (14), such language was no longer necessary. Local 793 asserts that Local 72] remains bound to submit jurisdictional disputes to the Plan by virtue of the Iron Workers' constitution.

36. In the alternative, Local 793 asserts that the International has the ability to bind Local 721 to the Plan. Local 793 described the International as the designated employee bargaining agency and asserts that the commitments of the International are commitments of the employee bargaining agency which must be enforced through the Provincial Agreement.

37. As further evidence of the International's power to bind Local 721 to the Plan, Local 793 relies on the provisions introduced into the Act by Bill 80 (sections 145 to 150). These provisions make specific reference to an international altering the work jurisdiction of a local and provide the local with a remedy where such is done in the absence of just cause. In Local 793's submission, these provisions mean that, where there is a difference of opinion between an international and a local, and the Plan has been used, the local does not have an independent right to challenge the decision by way of a jurisdictional dispute application to the Board.

38. Finally, Local 793 argues that Local 721 is bound by the decision of the Plan as it is a privy of the International. In support of such proposition, Local 793 relies on the Ministerial designation designating the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario as the designated bargaining agent representing, inter alia, Local 721.

39. If the Board does not find Local 721 to be bound by the Plan's decision, Local 793 urges the Board to exercise its discretion and decline to entertain the application. Local 793 submits that the Board should use its discretion to encourage law and order in the 'jurisdictional dispute jungle". According to Local 793, that law and order is provided by the Plan and the Board ought to support and encourage the use of the Plan and any other agreed upon dispute resolution mechanism.

40. Ryco Alberici supports the submissions made on behalf of Local 793 and encouraged the Board to exercise its discretion so as to not entertain the application on a further basis. Ryco Alberici advised the Board that the work that is the subject matter of this dispute is completed. It was completed according to the direction of the Plan arbitrator. The Plan arbitrator's decision indicates that it is of no precedential value. The Board would not award damages for an incorrect assignment of work in these circumstances. Accordingly, Ryco Alberici submits that the issue is now academic and the Board ought not to entertain it.

41. As we have adopted most of the submissions made on behalf of Local 721 in our determination of this matter, those submissions are not set out here.

(v) Decision

42. It is our determination that Local 721 is not stipulated to the Plan nor is it a privy of the International, and therefore it is not bound by the decision rendered by Arbitrator Knight. We have further determined that there is no basis in the circumstances on which we would exercise our discretion not to entertain the application.

43. We concur completely with Local 793's submissions wherein we were urged to support and encourage alternative dispute resolution mechanisms which are voluntarily entered into by the parties thereto. We are in agreement with the Board's conclusion in Asea Brown and Delta Catalytic that parties should be bound by determinations made by alternative dispute resolution mechanisms and not permitted to relitigate issues before this Board. In our view, however, in order for a party to be bound to a decision of an alternative dispute resolution mechanism, that party must have voluntarily agreed to be bound, or be bound through some other mechanism or process, such as the acts of a duly authorized agent. Absent such agreement, which may be express or implied, there is no basis on which it can be forced to attorn to the jurisdiction of such a body. The Ontario Labour Relations Board has a statutory mandate to hear and resolve jurisdictional disputes. The Board would be in serious error were it to refuse to entertain applications on the basis that another body had rendered a decision without satisfying itself that the party which resists the decision was bound to the process.

44. Thus, we turn to the question of whether Local 721 is stipulated to the Plan in its own right or whether it became bound as a result of the actions of the International.

45. In our view, it cannot be said that Local 721 is stipulated to the Plan in its own right. We do not view the Newfoundland and PEI cases as being of persuasive precedential value. As indicated above, notwithstanding the Newfoundland Supreme Court's comments to the contrary, the PEI case did not address the question of whether local unions were stipulated to the Plan and made no determination with respect to that question. Although the issue of whether a local union is stipulated to the Plan was squarely in issue in the Newfoundland case, for the reasons set out above, we do not view the Newfoundland Court's analysis of the issue as compelling.

46. We are also not persuaded that the provisions of the Constitution and the Plan relied upon by Local 793 result in Local 721 being stipulated to the Plan. We were provided with no evidence that Local 721 is in fact a member of the Department. It is possible that they are not in compliance with the terms of the Constitution and have failed to become a member of the Department. However, even if we were to assume that Local 721 is a member of the Department, it is our view that such membership alone would not stipulate them to the Plan. In our view, just as the international unions have done, in order for Local 721 to become stipulated to the Plan it would have to have entered into an agreement to such effect. We were provided with no evidence that such an agreement exists.

47. We do not view the amendment of the Iron Workers' Provincial ICI Agreement so as to remove any reference to the Plan to be irrelevant. As long as the Agreement stipulated that the parties agreed to abide by a decision of the Plan, there was a document, entered into by Local 721's designated bargaining agent which is authorized by statute to bind Local 721 to the Provincial ICI Agreement, which signified its agreement to be bound by the Plan. The deletion of such reference not only removes the. only evidence of Local 721's agreement to be bound by the Plan, it indicates an intention of the parties to the Agreement that Local 721 no longer be bound.

48. Local 793 argues in the alternative that Local 721 is stipulated to the Plan as a result of the actions of the International Association of Bridge, Structural and Ornamental Iron Workers on the basis that the International is the designated bargaining agency. This argument must fail. The International is not the designated bargaining agency. The designated bargaining agency is the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario. The International is but one constituent element of the designated bargaining agency and cannot act as the "designated bargaining agency" on its own. The only actions taken by the designated bargaining agency are those referred to above, where it agreed to remove a provision from the Provincial ICI Agreement referring to the Plan.

49. Local 793's argument concerning the provisions added to the Act by Bill 80 must also fail. Local 793 asserts that, pursuant to section 147, the International can alter Local 72 l's work jurisdiction and Local 721's remedy is to file an application under section 147 of the Act. Local 793 submits that binding Local 721 to the Plan is simply an exercise of the International's control over Local 721's work jurisdiction. As such, Local 721's relief is an application under section 147 of the Act. We do not accept that binding Local 721 to the Plan is analogous to altering its work jurisdiction. There is little doubt that, if asked, the internationals would in no way view submitting their jurisdictional disputes to the Plan as agreeing to an alteration to their work jurisdiction. We simply do not accept that an international union can stipulate its locals to the Plan and the local's remedy is an application under section 147. Parenthetically even if section 147 was available as a remedy, this fact does not lead to a conclusion that Local 721 is stipulated to the Plan. We have determined that Local 721 is not stipulated to the Plan and the existence of section 147 does not change that finding.

50. For the reasons set out above, we do not accept that Local 721 is bound to the Plan in its own right or as a result of the actions of the International.

51. Local 793 argues in the alternative that Local 721 is a privy of the International and thus bound by the decision of the Plan. Local 793 relies on the decision of the Ontario Court of Appeal in Rasanen v. Rosemount Instruments Limited (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267.

52. In our view, the facts before the court in case of Rasanen are distinguishable from the case before us. In Rasanen, the plaintiff, although not a party to the earlier proceedings, was represented at the hearing, had notice of every step in the process, called the witnesses he wanted, introduced the relevant evidence he needed and had the chance to respond to the evidence and arguments made against him. In the view of the Court of Appeal, he had all the benefits of an official party. In the present case, Local 721 was not present at the arbitration and thus had no opportunity to participate in the proceedings.

53. Is it accurate to say that Local 721 is a privy of the International? It is trite law that international unions and local unions are separate legal entities (see: Pigolt Construction Company Limited, 65 CLLC 16,053; and American Standard Products, [1965] OLRB Rep. Feb. 590). We are unaware of any basis upon which the International had the authority to attend at the arbitration hearing as the representative of Local 721. We are not persuaded that the fact that the International is one of the constituent elements of the designated employee bargaining agency makes it and Local 721 "privies". As indicated above, the designated bargaining agency is not the International alone. Further, the designation does not extend to representing the affiliated bargaining agencies in jurisdictional dispute proceedings. Thus, we do not accept that Local 721 is a privy of the International.

54. Finally, it is argued that the Board ought to exercise its discretion and decline to entertain this dispute. As is indicated above, we concur with the comments of counsel that this Board ought to support and encourage alternative dispute resolution mechanisms agreed to by the parties. Where such a mechanism has been agreed to, this Board would require compelling reasons to enquire into the dispute. However, we are also of the view that parties cannot be bound to an alternative dispute resolution mechanism without their consent. The Board is statutorily mandated to determine jurisdictional disputes. While the Board has a discretion to not entertain a dispute, we do not believe it is appropriate to exercise such discretion so as to bind a party to an alternative dispute resolution mechanism which it has never agreed to, but rather, has quite vocally opposed.

55. For the foregoing reasons, it is our determination that we will entertain this application. This matter is remitted to the Registrar to be scheduled for one day of consultation. This panel is seized.