Ontario Labour Relations Board
[1998] OLRB REP. MARCH/APRIL 139
331 7-97-JD Abitibi-Consolidated Corporation, Applicant v. International Association of Machinists and Aerospace Workers, Lodge 771 and International Brotherhood of Electrical Workers, Local 1744, Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members I. Knight and G. McMenemy
DECISION OF THE BOARD; April 17, 1998
1This is an application made by Abitibi-Consolidated Corporation (hereinafter "the employer") pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). The application raises for determination a work assignment dispute raised initially by the International Association of Machinists and Aerospace Workers, Lodge 771 (hereinafter "Lodge 771") in the form of a grievance dated June 27, 1996. As will be described in more detail below, the work in dispute was performed by members of the International Brotherhood of Electrical Workers, Local 1744 (hereinafter "Local 1744").
2A consultation before the Board to deal with the application on its merits was scheduled for March 25, 1998. On March 23, 1998, this panel of the Board cancelled the consultation by way of Board endorsement, and indicated that a decision of the Board would be forthcoming. This is that decision.
3The circumstances surrounding the cancellation of the consultation are somewhat unusual. The employer described the work in dispute in its application as "the repair work associated with the R-8 Chiller Heat Exchanger tubing". It filed a brief with the Board which described, in great detail, the work performed by members of Local 1744 on the R-8 Chiller during the time period complained of by Lodge 771. It is significant to note that the grievance initially filed with the employer by Lodge 771 described that union's complaint as the wrongful assignment of "work relating to the R-8 Chiller unit".
4Local 1744 filed a brief in response to the application filed by the employer. For the most part, it echoes the arguments raised by the employer for upholding the assignment of the work in dispute to members of Local 1744. There is one notable difference, however, in the brief filed by Local 1744, and that is the description of the work in dispute. In Local 1744's brief, it is described thusly:
All work in connection with the service, repair and maintenance of all stationary refrigeration units containing regulated refrigerants, including but not limited to the R-8 Chiller cooling process water in Bleach Plant operations (the work in dispute) at the Fort Francis (sic) Paper Mill (the 'Mill").
5The brief filed by Lodge 771 was filed approximately 6 weeks later, on March 3,1998, in response to an endorsement of the Board (differently constituted) dated February 20, 1998, which required that pleading to be filed, in lieu of which the application would be determined by reference only to the pleadings filed with the Board to date. In its submissions filed with the Board, Lodge 771 argued that the Board need not convene a consultation in this application, as there was no longer a dispute between the parties.
6In that regard, it appears from the brief filed by Lodge 771 that its underlying grievance dated June 27, 1996 was withdrawn by the union by way of letter from counsel dated March 2, 1998. Counsel proceeded to make the following submissions in the brief filed on behalf of Lodge 771:
IAM Lodge 771 has withdrawn the R-8 Chiller grievance.... The work in dispute is not likely to reoccur since it had not occurred previously for many years. In any event, were it to reoccur, it would not be in dispute. TAM Lodge 771 agrees that the assignment of work and the repair of the R-8 Chiller heat exchange tubing unit was properly given to IBEW Local 1744 as set out in paragraphs 10- 17 of the Applicant's brief. IAM Lodge 771 also agrees with the description of the work performed by its members on said unit, set out in paragraphs 14 and 24 of the Applicant's brief, which work has never been in dispute.
The brief proceeds to outline the argument relied upon by Lodge 771 for the proposition that the Board ought not to proceed to convene a consultation in this case. Counsel brought to the attention of the Board the decisions of ES. Fox Limited, [1990] OLRB Rep. May 504; Magna International Inc., [1987] OLRB Rep. April 742; Felix Lapes Sheet Metal Ltd., [1992] OLRB Rep. June 706; and Boise Cascade Canada Ltd., [1992] OLRB Rep. Feb. 127.
7The employer did not respond to or comment on the submissions of Lodge 771. Nor did it move to withdraw this proceeding. However, counsel for Local 1744 wrote to the Board on March 12, 1998. Counsel disagreed that the consultation ought to be cancelled. His submissions are dealt with below in some detail. Suffice it to say, at this stage, that after reviewing the submissions made by counsel for Local 1744 this panel of the Board was of the view that they had very little merit, and thus we cancelled the consultation on March 23, 1998.
8It would be helpful, at this stage, to set out the relevant portions of section 99 of the Act:
(1) This section applies when the Board receives a complaint,
(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another;
(b) that an employer was