International Brotherhood of Electrical Workers, Local Union 1788 v. Ontario Hydro and Electrical Power Systems Construction Association, 1998 CanLII 18314

[1998] OLRB REP. JULY/AUGUST 690

0622-98-G International Brotherhood of Electrical Workers, Local Union 1788, Appli­cant v. Ontario Hydro and Electrical Power Systems Construction Association, Re­sponding Parties v. International Brotherhood of Painters and Allied Trades District Council No. 46, Intervenor

BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. G. Knight and A. Haward.

APPEARANCES: Andrea Bowker, Harry Tornsett and Jack Reid for the Applicant; M. Patrick Moran and Barry Roberts for the Responding Parties; Laurence Arnold and Bill Nicholls for the Intervenor.

DECISION OF THE BOARD; July 16, 1998

1. The applicant has referred a grievance concerning the interpretation, application, administra­tion or alleged violation of a collective agreement to the Board for final and binding determination.

The issue

2. The responding party ("Ontario Hydro") and the intervenor ("the Painters") have three preliminary objections to the application. They argue that the grievance is untimely; secondly, the grievance is a chimera for what is really a jurisdictional dispute over work assignment; and thirdly, the challenge to the assignment of work by the applicant union ("Local 1788") has already been referred to the Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ("the Plan") for determination and the grievance should yield to that process.

Facts

3. A mark-up meeting occurred on July 7, 1997 concerning work to be done on an engraving machine then recently acquired by Ontario Hydro at its Pickering Nuclear Generating Station. At that meeting Ontario Hydro proposed to assign the work to the Painters, rather than to members of Local 1788. In a letter dated July 21, 1997, faxed on July 22, 1997 Ontario Hydro informed Local 1788 that the work was to be assigned to the Painters. The work commenced during or about August or September 1997. It is ongoing.

4. On January 21, 1998 Local 1788 filed a grievance concerning an alleged violation of Section 401(b) of the Principal Agreement between the Electrical Power Systems Construction Association ("EPSCA") (representing Ontario Hydro) and the IBEW Electrical Power Systems Construction Coun­cil of Ontario (representing Local 1788, among others) ("the collective agreement"). The grievance reads:

a) Nature of Grievance and Date of Occurrence:

401(a) work assignment

Change of work assignment from the I.B.E.W. to Brotherhood of Painters, Decorators and Paper Hangers of America with respect to the fabrication of Lamacoid Labels contrary to the procedural rules for the plan for settlement.

b) Remedy or Correction Requested:

1. Reassignment of work to the I.B.E.W.

The grievance concerns the assignment of work to the Painters which Local 1788 contends belongs to its members.

5. On the same date, January 21, 1998, Ontario Hydro referred the assignment as a jurisdic­tional dispute to the Plan.

6. All of the parties are party to the Plan and none suggested that it was not bound by it.

7. On February 3, 1998 Ontario Hydro responded to the grievance, as follows:

This grievance is not being accepted since it is a jurisdictional dispute. As outlined in Article 401(c) of the collective agreement, jurisdictional disputes are not subject to the grievance process.

8. On May 13, 1998 Local 1788 referred the grievance to the Board. The grievance is slightly expanded from its original form. Besides Local 1788's complaint concerning the assignment of the work to the Painters, Local 1788 grieves that Ontario Hydro ought never to have held the mark-up meeting on July 7, 1997. The grievance filed with the Board contends that the holding of a mark-up meeting is precluded when the assignment of work is by the same employer, for the same work at the same site. In those circumstances, contends Local 1788, no mark-up meeting may be held.

Relevant sections of the collective agreement

9. The collective agreement contains the following relevant sections:

401 A. The Employer who has the responsibility for the work shall make a proposed assignment of the work involved. The Employer shall be responsible for providing copies of proposed assignments to the Union (International Office and Local Union Office). The Employer will specify a time limit for the Union to submit evidence supporting its claims. The Employer will evaluate all evidence submitted and make a final assignment of the work involved. This final assignment will be in accordance with the procedural rules established by the plan for the Settlement of Jurisdictional Disputes in the Construction Industry. The Employer will advise the Union of the final assignments prior to the work commencing.

The EPSCA representative will record the proposed assignments and jurisdictional claims and forward a copy of them within fifteen (15) working days to the Union (International Office and Local Union Office).

The parties recognize that circumstances may arise, particularly with discovery and emergency work, where the process set out above may not be practical or possible. However, reasonable effort will be made by the Employer to adhere to the jurisdiction of the IBEW. When a Jurisdictional dispute exists between unions and upon request by the IBEW, the Employer shall furnish the IBEW International Office a signed letter from a duly authorized official of the company on employer stationery, stating whether or not the Union was employed on specific types of work on a given project. The Employer agrees to consider evidence of established practices within the construction industry generally when making jurisdictional assignments.

A markup process will be utilized when an Employer intends to perform work on a project site*. The purpose of this markup process is to indicate to the Union the work which is planned to be carried out by the Employer in order to minimize the potential for jurisdiction disputes.

When work is to be performed on a project site* and it meets the following criteria; same employer, same work, same project site*, the markup process will not be required. This procedure shall not preclude the Union's right to contest previously disputed work.

When an Employer has work that is less than a 3 week duration and there are ten (10) or fewer employees covered by EPSCA Collective Agreements employed on this specific work, the Union will be notified of the scope of work and the Employer's proposed work assignments. The Union will have two weeks from the date of notification to submit jurisdictional claims and supporting evidence to the Employer for consideration. The Employer will notify the Union of the final work assignments prior to the commencement of the work.

All work that does not meet the criteria set out in paragraphs 2 and 3 above, will be reviewed and assigned at a markup meeting.

EPSCA will provide written notice to the Union (International Office and Local Union Office) as far in advance as possible of markup meetings. The Union may attend these markup meetings, and every effort will be made to settle questions of jurisdiction before the work is expected to commence.

*For the purposes of this Article, Bruce Nuclear Power Development (BNPD) will be considered a single project Site.

402

A. The jurisdiction of the Union shall be that jurisdiction established by agreements between International Unions claiming the work or decisions of record recognized by the AFL­CIO for the various classifications and the character of work performed.

B. In the event that a jurisdictional dispute arises over a work assignment, the Employer will make an assignment for the work to be done. If any Union or Unions disagree with such a work assignment, the parties will settle such jurisdictional dispute in accordance with procedure as outlined by the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry, or any successor thereto.

C. In the event that a jurisdictional dispute cannot be settled on a local basis by the Unions involved, it shall be submitted to the International Unions involved for settlement without permitting it to interfere in any way with the progress of the work at any time. In the event the dispute is not settled by the International Unions involved, it shall then be submitted to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry for resolution. The International Representative of the Union will advise EPSCA in writing of his intent to submit a jurisdictional dispute to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry and will identify in detail the work in question. The decision of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry will be final and binding to the parties to this Agreement.

D. EPSCA shall have direct recourse to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry when the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry has under its consideration a dispute involving the assign­ment of work being done by employees who are covered by this Agreement.

1300 Grievances

A. Grievances within the meaning of the grievance and arbitration procedure shall consist only of disputes about the interpretation or application of particular clauses of this Agreement and about alleged violations of this Agreement. In the event of any dispute concerning the meaning or application of any provision of this Agreement or a dispute concerning an alleged violation of this Agreement, there shall be no suspension or disruption of work, but such dispute shall be treated as a grievance and shall be settled, if possible, by EPSCA and the Union. In the interests of expediting the procedure, the parties shall process grievances in the following manner.

B. PRELIMINARY DISCUSSION

Disputes arising out of the interpretation or alleged violation of this Agreement shall, if possible, be settled by discussion between the employee and/or his steward and the employee's supervisor.

C. FIRST STEP

If a dispute cannot be resolved by this method, the Accredited Union Representative for the Union may file a formal grievance on the prescribed form with the Manager of Construction. Such grievance shall be filed within fifteen (15) working days of the alleged grievous act.

As stated, Local 1788's grievance letter of January 21, 1998 concerns Section 401A of the collective agreement.

The timeliness of the grievance

10. Section 1300C of the collective agreement requires that a grievance be "filed within 15 working days of the alleged grievous act". That period can be extended by the Board on good cause and the Board can condone an untimely grievance. For good reason the Board will allow a union to pursue an otherwise untimely grievance.

11. There are two parts to the grievance: the complaint concerning the assignment of the work on the engraving machine to the Painters; and the holding of the mark-up meeting. The latter portion was not contained in the original grievance, but it is part of the grievance which has been referred to the Board.

12. The timeliness issue affects the two parts of the grievance in different ways. The portion of the grievance concerning the allegedly incorrect assignment ("the first portion") is an on-going griev­ance. The portion concerning the holding of the mark-up meeting ("the second portion") is a complaint which is fixed in time. The second portion arose on June July 7, 1997. It should have been brought as a grievance within 15 working days of that event.

13. The first portion of the grievance is on-going, hence the timeliness of its filing is less significant. It could have been filed earlier; it could also have been filed later, given Local 1788's claim is that there is a continuing violation of the assignment provisions of the collective agreement. Therefore the timeliness objection to the grievance does not strike out the first portion of the grievance.

14. As regards to the second portion of the grievance, the explanation given by Local 1788 for the delay in bringing the grievance is that it was engaged in informal discussions with Ontario Hydro management concerning the grievance, a process contemplated in Section 1300 of the collective agreement. That is not a sufficient reason for a delay of the magnitude involved in this case. The collective agreement contemplates some informal discussion, but that, on its own, does not justify a departure from the timeliness rule that grievances be filed within 15 working days. If progress is being made in the informal discussions and they should continue, then Local 1788 can get an extension of time from management, alternatively they can file their grievance on the understanding that they do so for the purpose of complying with the timeliness requirement of the grievance procedure, and informal discussions can continue unaffected. In our view there is no reason why the second portion of the grievance is not struck out by the timeliness provision of the grievance procedure. Accordingly, that portion of the grievance is struck out. What remains is the complaint concerning the assignment of work.

Is the grievance really a disguised jurisdictional dispute?

15. Local 1788 contends that the terms of its collective agreement with Ontario Hydro are such that if there is to be a work assignment and that work is the same as work which has always in the past been done by its members at the same site, then the work must be assigned to it. For that reason Local 1788 argues that what is involved in this application is a grievance alleging a wrongful work assignment, in violation of the collective agreement, and not a jurisdictional dispute.

16. This argument has the weakness of seeing the situation only for the perspective of Local 1788. What is at stake is that both Local 1788 and the Painters have a claim to the work. The assignment made by Ontario Hydro in June 1997 was done because Ontario Hydro was satisfied that the work belonged to the Painters. It conceived the situation to be that it was bound by its agreement with the Painters to assign the work to its members.

17. The situation involves a conflict between competing obligations in different collective agreements. Under Local 1788's collective agreement and under that of the Painters, Ontario Hydro has an obligation to assign certain work to both unions. There are circumstances, such as those which inform this case, when it must elect where its assignment obligation lies. In such circumstances, Ontario 1-lydro must choose which union should get the work. It made that election in June 1997. When a union is not happy with the assignment, and it claims that the assignment should have been made differently, the remedy available to the grieving union is to refer its complaint as a jurisdictional dispute, which is resolved either by the Board or under the Plan.

18. The substance of what remains of the grievance is whether the work which Ontario Hydro assigned to the Painters in July 1997 ought to have been assigned to Local 1788. That is exactly what constitutes a jurisdictional dispute. The remedy requested by Local 1788 is precisely what can be expected of a successful jurisdictional dispute challenge: they want the work re-assigned to their members.

Should the matter be resolved by the Plan?

19. The Board has jurisdiction to deal with the substance of Local 1788's complaint as a jurisdictional dispute. Local 1788 is entitled to bring such an application. However, the parties have resolved to refer jurisdictional disputes to the Canadian Plan for the Settlement of Jurisdictional Disputes. Both remedies are available to the parties: they are concurrent. In circumstances where an alternative procedure for the resolution of a jurisdictional dispute is available and has been initiated by one of the parties and agreed to by the remaining parties, and an application has not been made to the Board for relief, the Board should be agreeable to staying the grievance pending the outcome of such alternative mechanism. In other words, the Board should stay its own proceedings to allow the parties to pursue their chosen remedy.

20. The following considerations are relevant to our determination: the Board has not yet received a jurisdictional dispute reference; a reference to the Plan in respect of the substance of this application has already been made to the Plan; the plan is now readily accessible to the parties, being located in Canada, with a Canadian panel of experts from the construction industry to arbitrate the matters; the Board generally encourages parties to pursue their own dispute resolutions procedures rather than to make use of public resources, like the Board. (See Delta Catalytic industrial Services Limited [1996] OLRB Rep. March/April 233; Ryco Alberici [1997] OLRB Rep. September/October, 926; Asea Brown Boveri Inc. [1996] OLRB Rep. March/April 185). These considerations strongly suggest that the Board should defer proceeding with the grievance pending the resolution of the jurisdictional dispute under the Plan.

21. In light of these considerations and the Board's approach to these matters, we are satisfied that the substance of this application - the jurisdictional dispute - should be dealt with by the Plan.

22. The application is adjourned sine die for a period not exceeding one year. Unless within that time either party requests that the Board proceed with the matter, it will be terminated.