Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers v. Phoenix Restoration, 1998 CanLII 18295

Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers v. Phoenix Restoration

File Nos.: 0987-97-U; 0988-97-JD; 2866-97-G Date: July 14, 1998

Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers and International Union of Bricklayers and Allied Craftsworkers, Local 10, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited and Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598, Responding Parties; International Union of Bricklayers and Allied Craftsworkers, Local 10, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited and Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598, Responding Parties; Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers and International Union of Bricklayers and Allied Craftsworkers, Local 10, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Responding Party v. Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598, Intervenor

BEFORE: Robert Herman, Alternate Chair, and Board Members W N. Fraser and G. McMenemy.

APPEARANCES: L. A. Richmond, A. Leduc and J. Coelho for the applicant; Walter Thornton, Vince Brannigan and Michael Brannigan for Phoenix Restoration, A Division of Phoenix Gunite Services Limited; James Hayes, David Matheson and Livio Balanzin for the Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598.

DECISION OF THE BOARD; July 14, 1998

Decision

1These are three applications: an unfair labour practice, a related jurisdictional dispute, and a related application pursuant to section 133 of the Labour Relations Act, 1995. All three matters were listed for hearing together.

2At the hearing, the Board orally ruled that it would defer consideration of the unfair labour practice and construction industry grievance, until it was necessary. Both of those matters involved a challenge to the validity of a collective agreement between the responding employer, Phoenix Restoration, A Division of Phoenix Gunite Services Limited ("Phoenix Restoration"), and the Operative Plasterers', Local 598 ("Local 598"). As there was some reasonable prospect that this question would not have to be determined in order to decide the work assignment dispute, the Board concluded that it would first proceed with the consultation in the jurisdictional dispute. If the Board was able to resolve the jurisdictional dispute without determining the validity of the collective agreement between Local 598 and Phoenix Restoration, then the Board would do so.

3At the conclusion of the consultation, on March 30, 1998, the Board provided an oral decision to the parties, as follows:

1. Before providing our decision, we have some preliminary comments to make.

2. We do not decide or comment upon the validity of the collective agreement between Phoenix Restoration and the Operative Plasterers, and we have assumed it to be valid, for purposes of our decision in the jurisdictional dispute.

3. It must be kept in mind that this is a jurisdictional dispute consultation. The Board recognizes that there have been facts asserted by one party that the other parties have disagreed with, and some facts asserted for the first time in oral submissions, which were not contained in the materials filed by any of the parties. Nevertheless, given the consultation mode of this proceeding, unless the Board were to conclude that it was essential to determine these disputed facts in order to decide the jurisdictional assignment, the Board would not entertain evidence with respect to these matters. As a general proposition, a consultation does not get into the resolution of disputed facts unless essential to do so in order to answer the jurisdictional assignment question. Here, a number of factual matters were disputed, but in the result, the Board has not found it necessary to resolve those facts, nor does it base its decision upon those disputed matters.

4. As well, the Board recognizes that a consultation is a more fluid, less rigid process than a traditional Board hearing, and that the Board tends to be more directive and on occasion more interventionist. In a consultation, extensive written materials are required and pleaded in advance, and are read and considered by the Board before the consultation begins. The process of the consultation enables the Board to have a good understanding of the positions of the parties, and the material facts upon which they rely, prior to the commencement of the consultation, with the hope that this method and process will reduce hearing time, while still ensuring that all parties' cases are considered fairly, with fair opportunity to set out their positions.

5. Turning to the merits of the jurisdictional dispute, we accept that there are "speciality contractors".

6. We conclude that the Bricklayers' collective agreement covers the work in dispute, but so too does the collective agreement with the Operative Plasterers.

7. We are also satisfied that there are members of bath unions who are capable of doing the work in dispute, although not all members of either union are so qualified.

8. With respect to area practice, in this Board Area (Board Area 29) the area practice appears mixed. Whatever or however one characterizes or labels the work in dispute, the practice of employers in this area is mixed in terms of which trades or unions have been utilized in the past.

9. With respect to employer practice, Phoenix Restoration performed the work in dispute in this project in a context where it had a pre-existing collective agreement, covering the work, with the Bricklayers. Phoenix then obtained a contract for work in Board Area 29. Prior to that point in time, it had no collective agreement with the Operative Plasterers. Phoenix then voluntarily recognized Local 598, with respect to this work and for this project.

10. In these circumstances, the Board is satisfied that the work ought to have been assigned to Bricklayers Local 10. There is a competition of sorts between a union with pre-existing bargaining rights, covering the work in dispute, and a union voluntarily recognized just prior to the work in dispute being performed. In our view, the claim of the recently recognized union to perform this work is weak in such circumstances.

11. Accordingly, the assignment should have been made to the Bricklayers.

12. The applications pursuant to section 96 and 133 of the Act are hereby adjourned sine die, for a period of one year, to be relisted upon the request by any of the parties. If no such request is received by the Board within one year from March 30, 1998, these matters will be automatically terminated.

13. This panel is not seized.