[1998] OLRB REP. MARCH/APRIL 339
1704-97-JD Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Local 183, Labourers' International Union of North America, Local 837, Labourers' International Union of North America, Local 506, Labourers' International Union of North America, Ontario Provincial District Council, Well-Bur Construction Ltd., and Granville Constructors Ltd., Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members I. Knight and G. McMenemy.
DECISION OF THE BOARD; April 24. 1998
1This is an application concerning a work assignment which was filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). On February 9, 1998, this panel of the Board confirmed the assignment of the work made by Well-Bur Construction Ltd. (hereinafter "Well-Bur"). The applicant (hereinafter "Local 27") has requested that the Board reconsider its decision. The parties to this proceeding have all made submissions regarding Local 27's request, and Local 27 has now responded to their submissions.
2Section 114(l) of the Act provides the Board with the discretion to reconsider any decision it has made. That provision of the Act reads as follows:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
3The Board's policy regarding reconsideration has been clearly enunciated in its jurisprudence, including John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, and K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185. As a general proposition, the Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and where such evidence, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. As well, the Board will exercise its authority to reconsider a decision if an obvious error is identified, or if important policy issues are raised which have not received adequate attention (see, for example, Ontario Hydro, [1993] OLRB Rep. May 442). The rationale for the narrow limits imposed on the exercise of the Board’s power to reconsider its earlier decisions is obvious - only if Board decisions are considered to be final can they be relied upon by the parties as establishing the rights as between them.
4Some background about what this proceeding was all about is helpful. In May, 1991, four trade unions entered into an agreement with respect to work jurisdiction. Local 27 and Labourers' International Union of North America, Local I 83 (hereinafter "Local 183") were two of the unions signatory to the agreement, known colloquially (and, it would appear, somewhat optimistically) as "the Peace Treaty". For the purposes of this proceeding, the important aspect of the Peace Treaty is that it provides that "the carpentry portion of concrete forming construction work" on most projects in the ICI sector of the construction industry is to be performed exclusively by members of Local 27 employed under the Carpenters' Provincial ICI agreement.
5In April, 1996, Granville Constructors Ltd. was awarded an upgrade project at the Barrie Water Pollution Control Centre, a project that Local 27 asserts was one in the ICI sector of the construction industry. The concrete forming work was subcontracted to Well-Bur. Local 27, upon learning of the project, became of the belief that members of Local 183 had been assigned "the carpentry portion of the concrete forming work" on the project, in violation of the Peace Treaty. Accordingly, it invoked a provision of the Peace Treaty which permits for the arbitration of disputes under that agreement.
6Prior to arriving at arbitration, Local 183 satisfied Local 27 that none of its members had been on site at the Barrie project. It became clear that members of Labourers' International Union of North America Locals 506 and 837 (hereinafter "Local 506" and "Local 837" respectively) had performed the work in question. As a result of learning that information, the arbitration under the Peace Treaty was adjourned, and this proceeding was filed at the Board. In essence, Local 27 asserted that its members ought to have been assigned the work in dispute at the Barrie project, and that the arrangement between what it described as "the Labourers' Union" and Well-Bur was contrary to section 162 of the Act.
7A consultation was held at the Board on December 5, 1997. At the conclusion of the consultation, the Board reserved its decision. As noted above, the Board's decision issued on February 9, 1998, and confirmed the work assignment made by Well-Bur.
8The reconsideration request filed by Local 27 contains two separate grounds for the Board's reconsideration of its decision. First, it is submitted that this panel of the Board departed from previous Board policy with respect to the approach to be taken to matters which are alleged to be both a violation of the Act and a jurisdictional dispute. Secondly, it is submitted that certain facts determined by the Board which underlie our decision were determined without an evidentiary base, and that this panel has, therefore, denied natural justice to Local 27.
9Turning to the first ground, it is evident to us that the concerns raised by Local 27 stem from an erroneous interpretation of paragraph 12 of our February 9, 1998 decision. In that paragraph, we stated the following:
Turning next to the criterion of trade agreements, counsel for Local 27 relied upon the Peace Treaty referred to above as a document of significance. The difficulty with Local 27's position is the simple fact that neither Local 506 nor Local 837 is a signatory to or bound by that document. To the extent that it is asserted that Local 183 has caused the work in dispute to be assigned to sister locals to avoid the provisions of the Peace Treaty, a jurisdictional dispute proceeding is not the proper forum for determination of that question. In the result, there is no relevant trade agreement which speaks to the work in dispute.
Counsel for Local 27, in his submissions in support of the reconsideration request, cites the Board decision of Peter Kiewit Sons Co. Ltd., [1991] OLRB Rep. July 881 for the proposition that issues with respect to the application of bargaining rights, alleged violations of the Act, and competing jurisdictional claims of trade unions ought not to be tiled as unfair labour practices, but as jurisdictional disputes. He submits that given the hearing process for unfair labour practice complaints and the consultation process for work assignment disputes - two entirely different processes - it is not possible to combine the two, particularly where the issues in the jurisdictional dispute may be dealt with in the unfair labour practice proceeding by way of direct evidence. Counsel concludes by urging the Board to confirm the practice of the Board as described by Peter Kiewit Sons Co. Ltd., cited above.
10It would appear to us that counsel for Local 27 has quite innocently misinterpreted what the Board intended to say at paragraph 12 of our February 9, 1998 decision. In fact, counsel for Locals 506 and 837, in his submissions in response to the applicant's request for reconsideration, has quite accurately identified the meaning of our observation at paragraph 12. The comment made in the last half of paragraph 12 was merely our observation that if Local 27 was asserting that Local 183 had purposely caused the work in dispute to be assigned to Locals 506 and 837, it may well be that the initial arbitration process might be the proper forum for consideration of that issue. We never intended to comment on or depart from any Board policy regarding the litigation of unfair labour practice matters in the context of jurisdictional disputes.
11In the request for reconsideration, counsel for Local 27, after suggesting that the Board's current consultation process is "a vast improvement" on the former practice of lengthy hearings, submits that the consultation process has its limits. It is suggested that, where a matter is central to the Board's decision, the Board ought not to make findings of fact with those factual disputes outstanding. It is then argued that such a scenario occurred in this case, because "the Board concluded that there was no trade agreement on the basis that such issues ought not to be part of a jurisdictional dispute". We disagree. Paragraph 12 of the February 9, 1998 decision was meant to (and in fact does clearly) state that "the Peace Treaty" cannot be considered to be a "trade agreement" so as to affect either Locals 506 or 837. It cannot have that effect vis-a-vis Locals 506 and 837 because they are not signatory to the document. "The Peace Treaty" may well be a "trade agreement" as amongst the signatories to the document. But the work was assigned to members of two trade unions which were not bound by "the Peace Treaty", and therefore the document can have no effect regarding the assignment of work made in this instance. That is why paragraph 12 of our decision refers to the lack of a "relevant" trade agreement. Accordingly, with that clarification, we will not reconsider our previous decision on this ground.
12The second ground for reconsideration is of greater significance. As noted above, Local 27 raised for consideration an argument based upon section 162 of the Act. The paragraphs of our earlier decision which underlie the reconsideration request are paragraphs 9 and 10, which read as follows:
- Not surprisingly, opposing counsel viewed the matter matter quite differently. We do so as well. As was pointed out by counsel for Local 183, the Board has stated, on many occasions, that although the Labourers' International Union of North America or one of its affiliated local unions cannot represent carpenters and carpenters' apprentices in the ICI sector of the construction industry, any one of those entities can represent "construction labourers performing carpentry work" in that same sector of the construction industry (see, for example, Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305, at para. 22 and 23; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, at para. 30; and Ellis-Don Limited (Board File 1754-95-JD, unreported decision dated July 18. 1996)). In the latter decision, the Board made the following observations:
Both carpenters and labourers perform the work that is the subject of the jurisdictional dispute. The fact that a labourer performs work also performed by a carpenter does not make the labourer a carpenter or vice-versa. The fact that the Labourers inserted the word "carpenter" front of the form-builder classification does not make a construction labourer into a carpenter or change the scope clause to include carpenters…..
Because the Labourers' or any other trade union performs work that is also performed by another trade union as part of its recognized work it does not extend bargaining rights for this other trade or craft. As the Board has said in Ellis-Don Limited, supra, and Gisar Contracting Limited. supra, the use of the term "formsetter" or "form-builder" does not create a "carpenter" or a "labourer". Adding the word "carpenter" in front of the classification of "formsetter" or "form-builder" cannot expand the scope of all construction labourers of the collective agreement to include all carpenters. On that basis any parties to a collective agreement could negotiate various classifications within the overlap area of certain trades and claim bargaining rights for other trades or crafts
- We agree. The work in dispute in this proceeding is not particularized, but it cannot be disputed that what can be described as "the carpentry portion of concrete forming work" in the ICI sector of the construction industry has been performed, historically, by both labourers and carpenters. This does not lead to the conclusion, however, that section 162 of the Act has been violated. Neither Local 506. 837 or 183 purports to represent carpenters and carpenters' apprentices in the ICI sector of the construction industry, but rather construction labourers (or "formworkers") in that same sector. Representation of the latter group by Locals 506, 837, and 183 is entirely within the scope of section 162 of the Act. The fact that “construction labourers" perform work that "carpenters and carpenters apprentices also perform cannot lead to the conclusion that section 162 of the Act has been violated.
13Local 27's concerns regarding these paragraphs are raised in the context of an objection regarding the relevance of certain submissions made in the materials before the Board, and during the course of the consultation. At the outset of the hearing, counsel for Local 183 asked that the Board strike certain references in paragraphs 2, 6 and 29 of the applicant's consultation brief relating to alleged violations of "the Peace Treaty". After hearing the submissions of counsel for Local 27, we ruled that we were not satisfied that certain allegations of misconduct relied upon by Local 27 had been properly pleaded. Furthermore, we were of the view that the conclusions that Local 27 desired the Board to reach with respect to the conduct of Locals 183, 506 and 837 (and their agents) were not necessary to resolve the work assignment dispute before the Board. We did indicate, however, that reference to "the Peace Treaty" and its provisions may be of some relevance. We therefore struck the references in paragraphs 2, 6 and 29 of Local 27's brief which asserted that there had been a circumvention of "the Peace Treaty" by Locals 183, 506 and 837.
14Later, during the course of the consultation, counsel for Local 27 asserts that, while in the midst of argument, counsel for Well-Bur and Granville successfully objected to his submissions and he was unable to complete his remarks regarding the two different "types" of collective agreements to which the various locals of the Labourers' International Union are bound. Counsel for Well-Bur and Granville, in response, takes the position that counsel for Local 27 was not so precluded, and that his notes indicate that the Board responded to his objection by permitting counsel to continue. Having reviewed our notes, we concur with the position of counsel for Well-Bur and Granville - our notes reflect only that an objection was made; not that the objection was granted. It is also evident from our notes that counsel for Local 27 made thorough and complete representations regarding the Form Work Council agreement and the Labourers' Provincial ICI agreement.
15Why is all of this important'? Counsel for Local 27 asserts that paragraphs 9 and 10 above reflect a finding of fact about the bargaining unit and the scope of the collective agreement on which there was no evidence. Counsel asserts that the Labourers' collective agreements fall into two types, as described in a series of earlier Board decisions. One covers construction labourers (such as the MTABA or THLB agreement); another is the agreement between the Form Work Association and the Form Work Council. Counsel claims that our analysis was insufficient, and that we did not have the proper information before us to reach a conclusion in this case - that "it is inappropriate to conclude that [the collective agreement] covers only construction labourers who perform carpentry work, or conversely that it is a bargaining unit covering carpenters and carpenters' apprentices even if not so named".
16In essence, then, counsel for Local 27 asserts that he was attempting to demonstrate to the Board that this was, in fact, a bargaining unit which included carpenters, notwithstanding an attempt to "paste" the label of the Labourers' Provincial ICI agreement over it, and that he was precluded from doing so during the course of the consultation. His penultimate paragraph in the reconsideration request reads as follows:
- Accordingly, we were unable to complete our submissions on the basis of the documents filed as to which of the two "types" of agreements this was or to suggest what other evidence was necessary to determine this question. Frankly, a conclusion that five very similar projects performed by the same core group of persons from Hamilton Local 837 supplemented by Labourers from the local Labourers' Union under the Formwork Council Agreement should be enough to shift the burden of persuasion to the parties wishing to maintain the label of the Provincial Collective Agreement. Other relevant evidence would include the detailed nature of the work performed on the previous projects, a determination that the Formwork Council Agreement was utilized, and the distribution of personnel on those projects was [sic] compared to the instant one.
17With all due respect to counsel for Local 27, we most vigorously disagree with the submissions he has made in support of his client's reconsideration request. It is clearly evident from our notes that counsel for Local 27 was given every opportunity to make submissions regarding the section 162 issue and the question of the applicability of the various collective agreements under which the work in dispute may have been performed. The underlying rationale for dealing with these two issues was noted during the course of argument by counsel himself - "collective bargaining relationships" is a factor taken into account by the Board in determining the appropriateness of work assignments by employers. Local 27 conceded that it had no bargaining relationship with Well-Bur that governed the work in dispute. Counsel urged the Board, through his analysis of the two different agreements at play here (i.e. the Labourers' Provincial ICI agreement and the Formwork Council Agreement), that there was no relevant collective agreement here binding Well-Bur to the "Labourers' union".
18The other parties to the consultation conceded that the work in dispute was performed under the Labourers' Provincial ICI agreement, and not the Formwork Council Agreement. This was noted in paragraph 8 of our decision. In fact, at paragraph 33 of the applicant's consultation brief, it is stated that "The Labourers' Provincial Collective Agreement ... was the collective agreement employed on the project". We were not satisfied that Local 27 had established otherwise during the course of the consultation.
19More importantly, we are not satisfied that, at this late date, Local 27 ought to be provided with a further opportunity to establish that which is asserts it was precluded from doing during the course of the consultation. As noted above, we are entirely satisfied, having reviewed our notes of the consultation, that counsel for Local 27 was provided with a full opportunity to make any submissions he desired on the issue. In fact, we are quite confident that he did. It appears to us that what Local 27 really wants to do, at this time, is to turn back the clock, as it were, and re-argue the point (having been previously unsuccessful) with the aid of viva voce evidence on the matter - in particular, that referred to in paragraph 24 of his client's reconsideration request, outlined above. As noted in Ontario Hydro, cited above, a request for reconsideration is not intended to provide a second opportunity for a party to make its case. We note here that at no time during the course of the consultation did counsel for Local 27 submit that there was any need to call viva voce evidence; nor did Local 27 submit any written materials speaking to the "detailed nature of the work performed on the previous projects, a determination that the Formwork Council Agreement was utilized, and the distribution of personnel on those projects" as compared to the one before the panel of the Board.
20We make all of the above observations, in one sense, on a "without prejudice" basis, because we are of the view that the nature of a consultation is entirely different than a hearing. In fact, a review of the submissions made by Local 27 would seem to suggest that the difference between a consultation and a hearing is acknowledged and appreciated.
21Prior to the advent of the immediate predecessor of the current consultation process, work assignment disputes were resolved by hearings in the traditional sense - which counsel for Local 27 refers to as "twenty day marathons". He further notes that "by requiring a consultation brief containing all alleged facts and all arguments, the entire process is made simpler. It requires parties to articulate facts and arguments on which they rely prior to the hearing". That this is now the method utilized by the Board to resolve jurisdictional disputes is well-known.
22It is evident from the Board's Rules of Procedure, particularly Rules 72 to 75, that the parties to a work assignment dispute are expected to file with the Board a brief containing a statement of all of the issues in dispute, and the facts upon which they intend to rely. These same documents are to be delivered to all of the other parties. Furthermore, and most importantly, section 99(3) of the Act makes it quite clear that it is unnecessary, for the purpose of work assignment disputes, to hold a hearing. Instead, as is directed by section 99(5) of the Act, the Board can make an order regarding a jurisdictional dispute after consulting with the parties.
23In our view, the concept of "consulting" with the parties incorporates a great deal of latitude for the Board. Rule 76 of the Board's Rules of Procedure makes it quite clear that, where the Board is satisfied that a proceeding can be decided on the basis of the material before it, the proceeding can be determined "without an oral hearing". In those circumstances it is also unnecessary for the Board to convene the parties to entertain oral submissions on the conclusions that the Board ought to reach. Accordingly, the parties must be prepared, in all such cases, to have made their case in the materials filed with the Board.
24In Ontario Hydro, cited above, the Board made the following observations about the consultation process, at paragraph 10:
In this case, the Board found it appropriate to schedule a consultation, a proceeding which is something less than a hearing in the traditional sense. Nevertheless, a consultation is an opportunity, perhaps the only opportunity, for the parties to a jurisdictional dispute complaint to address the Board with respect to the matter. The rules of natural justice do not apply to such a proceeding in any traditional sense. However, the parties are afforded the opportunity to refer to the extensive materials which they are required to file in such cases, and to make representations with respect to how the Board should proceed (including whether the Board should hear evidence or otherwise hold a hearing on any matter or issue) or dispose of the complaint.
25Here, too, the Board found it appropriate to schedule a consultation with the parties, to entertain their oral submissions on the materials filed with the Board. Although it would have been open to the Board to determine selectively the issues upon which we would have entertained submissions, instead the Board permitted counsel the opportunity to comment on all of the materials filed (subject to the objection which was allowed, noted above). In that context, and keeping in mind that the Board need not have scheduled an oral consultation in the first place, we find it difficult to understand how it can be said on the facts before us that Local 27 could in some way have been denied natural justice on December 5, 1997. However, even so, we repeat here that at no time on December 5, 1997 did counsel for Local 27 suggest during the course of the consultation that it was necessary to call oral evidence, or to hold a hearing to deal with any of the evidence which he now desires to call. It is too late, at this juncture, to do so.
26In our view, Local 27 has not established any grounds for reconsidering our decision. There has been no breach of natural justice which would warrant a reconsideration of our prior decision. The traditional Board test for reconsideration has not been satisfied. In the circumstances, then, we reject this reconsideration request.