International Union of Bricklayers and Allied Craftworkers, Local 1 v. Findlay-Jones Insulation Limited, 1999 CanLII 19945

[1999] OLRB REP. JANUARY/FEBRUARY 34

2253-97-G; 4810-97-JD International Union of Bricklayers and Allied Craftworkers, Local 1, Applicant v. Findlay-Jones Insulation Limited, Responding Party; Findlay-Jones Insulation Limited, Applicant v. International Union of Bricklayers and Allied

Craftworkers, Local 1, Operative Plasterers', Cement Masons' and Restoration Steeple-jacks' International Association of the United States and Canada, Local 598, Responding Parties

Construction Industry - Jurisdictional Dispute - Employer filing jurisdictional dispute complaint with Board after referring dispute to Canadian Plan for Settlement of Disputes in the Construction Industry (the "Plan") and receiving decision from arbitrator under the Plan in employer's favour - Bricklayers' Local 1 receiving no notice of proceeding under the Plan and not participating in its proceedings - Board concluding that Bricklayers' Local 1 had not agreed to be bound to the Plan and that it was not so bound by operation of any legislation or by the private law of the parties to the Plan - Board holding that Local 1 not a privy of the International union (which is bound to the Plan) and that issue estoppel not applying - Board exercising its discretion against inquiring into jurisdictional complaint

APPEARANCES: David Cowling and Pierre Perron for Findlay-Jones Insulation Limited; L. A. Richmond and K. Wilson for Ontario Provincial Conference of International Union of Bricklayers and Allied Craftworkers, Local 1; David Matheson and Livio Balanzin for Operative Plasterers', Cement Masons', and Restoration Steeplejacks' International Association of the United States and Canada, Local 598; Philip Benson for the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry.

BEFORE: G. F Surdykowski, Vice-Chair.

DECISION OF THE BOARD; February 22, 1999

1. Pursuant to the Board's May 21, 1998 decision in this matter, a hearing was convened on September 28, 1998, to deal with the following issues:

(a) whether Bricklayers' Local 1 is stipulated to or bound by the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (referred to in the May 21, 1998 decision, apparently wrongly, as the Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry - but in any event hereinafter referred to as the "Plan");

(b) whether Bricklayers' Local 1 is bound by the decisions of Mr. David T. Butt, an Arbitrator under the Plan, with respect to the work in dispute herein.

The issue underlying all this, of course, is how the Board should deal with these matters.

2. Board File No. 2253-97-G is a referral to the Board of a grievance in the construction industry, under section 133 of the Labour Relations Act, 1995 (the "Act"). Board File No. 4810-97-JD is a jurisdictional dispute complaint under section 99 of the Act. The former led to the latter, although in a much more round-about way than is generally the case. The two matters have proceeded together, although if they were both to proceed further, they would be heard consecutively, with the jurisdictional dispute being dealt with first.

3. In Board File No. 2253-97-G, Bricklayers', Local 1 alleges that the responding employer, Findlay-Jones, breached the Bricklayers' provincial (ICI) agreement between the Ontario Provincial Conference of the International Union of Brickiayers' and Allied Craftsmen, and the Masonry Industry Employers Council of Ontario, effective until April 30, 1998 and (specifically Articles 1, 5, 8, 9 and 27 thereof) by reason that the company did not assign certain work claimed for its members by Bricklayers', Local 1 to members of that union.

4. In the jurisdictional dispute complaint, filed by Findlay-Jones, the precise parameters of the work in dispute have not been determined. However, it concerns the application of vapour barriers and insulation onto concrete block or brick walls, both of which are subsequently covered by precast concrete, stone or block creating a "layered wall". The particular job site is in Hamilton.

5. The particulars of the somewhat unusual history of these proceedings are described in the May 21, 1998 decision of the Board (by a three person panel, which I chaired) and need not be repeated here, except to reiterate that notwithstanding Cement Masons' Local 598's undertaking to file a jurisdictional dispute at the Board, Findlay-Jones requested that the Plan determine the dispute. The Plan appointed Mr. Butt as sole arbitrator to deal with the employer's request. Neither Cement Masons', Local 598 nor Bricklayers', Local 1 attended the Plan hearing. Arbitrator Butt concluded that Findlay-Jones' assignment of the work in dispute to the Cement Masons' Union should be upheld.

6. I agree generally with the Board's analysis in Ryco-Alberici [1997] OLRB Rep. Sept. /Oct. 926 regarding the Plan's status to participate in proceedings before the Board. However, because the question of the interplay between the Plan and jurisdictional dispute proceedings before the Board has arisen twice within a relatively short period, and also in the particular circumstances of this case, I considered it appropriate to grant the Plan amicus curiae status in this stage of these proceedings in order to ensure that the Board would have complete information about the Plan before it.

7. Philip Benson is the Plan's Administrator in Canada. He testified about the history and development of the Plan and how it operates today. He also made representations regarding the Plan's view of its position in the construction industry, and how the Board should relate to the Plan. In essence, the Plan (through Mr. Benson) asserts that it is a private mechanism created by the traditional Building Trades Unions to promote the construction industry, and to provide an expeditious forum for resolving jurisdictional disputes without disrupting the work being performed. The Plan asserts that it is a mandatory scheme which is binding on the 15 signatory International Unions (actually 14 International and one National, but it is convenient to refer to them all as "International Unions" for purposes of this decision) and also all of their subordinate Local Unions. The Plan relies on the provisions of the Plan document, the constitution of the Building and Construction Trades Department, and, in this case, on the constitution of the International Union of Bricklayers and Allied Craftsmen. It is through this chain, says the Plan, that Bricklayers, Local 1 is "stipulated" to the Plan, and therefore subject to and bound by the decisions of Plan Arbitrator Butt.

8. The Board does not agree.

9. The Plan has a long history. Throughout that history it has been more or less active according to the time. There was at least one period in relatively recent history when it was completely dysfunctional. But however interesting the history of the Plan may be to a labour relations scholar, what is relevant to the Board's considerations is what the Plan is today.

10. Exhibit 4 is what it is commonly referred to as the "Green Book". This includes the procedural rules and regulations for the Plan, the Plan itself and a collection of trade jurisdictional agreements and Decisions of Record by the predecessors of the current Plan adjudicators. All of the agreements are more than forty years old. Only two of the recorded Decisions of Record are less than forty-five years old, and even the most recent one is more than twenty years old.

11. The structure of the Plan reflects its lengthy history. It is a creature of the American International Construction Unions, which they developed at a time when Local Union autonomy was a rare and very limited thing. Accordingly, although the Plan is funded by per capita dues collected from Local Union members by the Local Unions, the Plan operates in a manner which excludes Local Union participation (although there are inconsistencies in the actual structure of the Plan in that respect, something to which I will return in due course). Accordingly, while the Plan purports to be binding upon all Local Unions of the signatory International Unions, the Administrator is expressly "prohibited from taking action on protests or requests to discuss jurisdictional matters from local unions or building construction trades councils" (Article II section 2 of the Plan Procedural Rules).

12. The Plan arises out of the constitution of the Building Trades Department, AFL-CIO. The president and 15 vice-presidents of this American organization are "International people". Its president is always a former president of one of the signatory Internationals, and the 15 vice-presidents are the current presidents of the signatory Internationals.

13. Article X of the Building and Construction Trades Department constitution has been imported into the Plan. It provides that:

Jurisdictional Disputes

All jurisdictional disputes between or among affiliated National and International Unions and their affiliated Local Unions and employers shall be settled and adjusted according to the present plan established by the Building and Construction Trades Department, or any other plan or method of procedure adopted in the future by the Department for the settlement of jurisdictional disputes. Said present plan or any other plan adopted in the future shall be recognized as final and binding upon the Department and upon all affiliated National or International Unions and their affiliated Local Unions.

Article I section 2, Article II section 12 and Article XIII of the Building and Construction Trades Department constitution provide that:

ARTICLE I

Name and Jurisdiction

Section 2. This organization shall be composed of National and International building and construction trades unions, historically organized as such, and which are primarily and customarily, or historically,engaged or operating in the building and construction trades industry and all branches, divisions and subdivisions thereof.

ARTICLE II

Objects and Principles

Section 12. To protect National or International Unions affiliated with the Department in their established trade jurisdiction in the building and construction trades industry as historically granted and conferred upon them by the American Federation of Labour and as traditionally exercised by them.

ARTICLE XIII

Local Unions - Affiliation Local Councils

All Building and Construction Trades Local union of National and International Unions affiliated with the Department in the geographical jurisdictional of Local Building and Construction Trades Councils shall affiliate with said Local Council.

That is, the Building and Construction Trades Department constitution purports to bind and place obligations on Local Unions of the signatory Internationals, and therefore to and under the Plan, even though it appears that in practice at least the only right these Local Unions have under the Building and Construction Trades Department Constitution or the Plan is to pay for them.

14. The Brickiayers International constitution includes the following provisions: ARTICLE III

Objects

(16) To promote, foster and develop the trade jurisdiction of this

International.

ARTICLE VIII

Local Unions

A. Local Unions shall retain all authority not delegated in this Constitution to the International Union, to State or Provincial Conferences, or to District Councils.

B. The Constitution and By-Laws and all actions of Local Unions shall be in confonnity with the IU Constitution, all rules, regulations and Codes promulgated thereunder, and all decisions, rulings and orders issued by the IU Executive Board. If the Board concludes that a provision of the Local Constitution and By-Laws is inconsistent with IU law, that provision shall be of no force and effect. In order to assure compliance with this Section, all Locals shall forward to the IU Secretary-Treasurer their Constitution and By-Laws and any amendments thereto within fifteen (15) days of their adoption.

H. The International Union shall not be a party to or administer any collective agreement to which it is not an express signatory.

ARTICLE IX

District Councils

A. (1) District Councils shall be composed of two (2) or more Local Unions in any city or town, or such larger geographical area as the IU Executive Board may determine....

B. The District Council shall negotiate agreements with employers covering work performed within the trade and geographic jurisdictions of the constituent Locals through a Negotiating Comnuttee of at least three (3) of its members, and shall conform its activities so the requirements stated in Article vIll, Sections N, 0 and P, substituting "District Council" for "Local Union" in those Sections as pertinent. The District Council shall regulate the rights and obligations of members of constituent Locals who work within the Council's jurisdiction but outside the jurisdiction of their Locals, and shall have such other powers and authority as are granted in its Constitution.

ARTICLE XVI

Duties of the Executive Board

G. The Executive Board shall have general supervision of the interests of the International Union, including the authority to consummate agreements where such agreements are appropriate to protect the interests or existing employment opportunities of members, but no such agreement affecting specifically named areas or projects shall be executed until all Local Unions with jurisdiction over any geographical area in which the agreement would be effective have been notified in writing that an agreement is under consideration and provided an opportunity for consultation with the International Union.

(emphasis added)

15. There is nothing in the Bricklayers' International constitution which gives the International Union the power to unilaterally stipulate its Local Unions to the Plan. The objects clause in the International constitution includes a "motherhood" statement to the effect that the International will conduct its affairs to "promote, foster and develop" its trade jurisdiction. But it is just one of eighteen such motherhood statements, and in the context of the constitution as a whole, it gives the International no authority to speak for its Locals in jurisdictional matters. Indeed, the constitution specifically provides that the International will not be a party to or administer any collective agreement it has not signed, and the practice in Ontario has been for the Bricklayers' International Union to neither participate in bargaining for, nor sign collective agreements. Nor has the Bricklayers' International Union been involved in administering collective agreements. (I note that the Bricklayers' International Union's legal status in the provincial organizing scheme for the ICI sector in the construction industry in Ontario has been different, but in practice the Bricklayers' Provincial Agreement has not been signed by a direct representative of the International Union.) On the contrary, the International constitution stipulates that collective bargaining and collective agreement administration will be carried out by district councils or conferences of Local Unions. That is precisely what has happened in Ontario, where the Ontario Provincial Conference of the International Union of Bricklayers' and Allied Craftsmen (the "OPC") has long carried the collective bargaining ball. (Indeed, the employee bargaining agency of which the International Union was a part has recently been displaced by the OPC. The Board certified the OPC as the employee bargaining agency under section 154 of the Act.)

16. The natural consequence of this is that it is the Bricklayers' Local Unions, either directly or through the OPC, which have policed the Bricklayers' trade jurisdiction and who have taken the necessary steps, through litigation or otherwise, to promote, foster, develop and protect the trade jurisdiction of the Bricklayers' Union in Ontario. Historically, the Bricklayers' International Union has had only a nominal collective bargaining presence in Ontario.

17. The Bricklayers' International Union cannot give itself a representational capacity it does not have under its own constitution, and which it has never previously purported to practise, merely by agreeing with its International partners in the Building and Construction Trades Department that that is the case. Saying it does not make it so.

18. In this case, the only things that anyone has pointed to in support of the assertion that Bricklayers' Local 1 is stipulated to the Plan is the Plan itself, the Building and Construction Trades Department constitution, and the Bricklayers' International constitution. There is nothing in the Bricklayers' International constitution which gives the International Union the power to unilaterally agree that its Local Unions are stipulated to or bound by the Building and Construction Trades Department Constitution or to the Plan. To the extent that the Bricklayers' International Executive Board has any such power under Article XVI G of the International Constitution, it is only effective if the Local Unions have first been given notice in writing and have been consulted about the matter. I reject the submission that I should assume that that has been done, and there is no evidence that it has been. Nor is there anything else before the Board which suggests that Bricklayers' Local 1 has given the International Union any such authority, either generally or in this case. On the contrary, the evidence indicates that Bricklayers' Local l's Business Manager advised the International Union's representative orally and in writing that the Local intended to pursue the jurisdictional dispute herein at the Board. The International's representative's response was, in effect, that he didn't care and that the International Union intended to represent Bricklayers' Local 1 before the Plan on that issue.

19. With respect, the International had no authority to do so. The jurisdictional dispute in this case arises between Bricklayers' Local 1 and Cement Masons' Local 598. They are the trade union principals in the dispute. If the International Union was purporting to act as Bricklayers' Local l's agent before the Plan, it did so without any ostensible or actual authority. If the International could be construed as acting as a principal (something which it seems to me it could only do by a bootstrapping sort of operation of the Plan itself), it is not appropriate to treat Bricklayers' Local 1 as a privy of the International Union for issue estoppel or any other purpose.

20. As Mr. Benson himself repeatedly said (and indeed as the Plan itself specifies in Article I (a)), the Plan is a voluntary, private mechanism for resolving jurisdictional disputes in the construction industry. What he meant of course, it that it is voluntary for employers and the International Unions. The Plan would have it that the Local Unions of the volunteer International Unions have no choice. Not so. The Plan is a private scheme which has no statutory basis. The only parties which are bound by it are those who have voluntarily agreed to it, or who are bound by operation of law. That was the case in Delta Catalytic Industrial Service Limited, [1996] OLRB Rep. March/April 233. There, the IBEW Local 353 was held to be bound by a decision of a different private dispute resolution mechanism because it had initiated the process, fully participated in the proceedings, and had not objected until after the decision had been given. IBEW Local 353 had also previously participated in the processes of that mechanism. No part of the Board's determination in Delta Catalytic, supra, was based on the involvement of the IBEW International Union. Similarly, in the issue estoppel case of Rosanen v. Rosemount Instruments Limited, (1994) 17 O.R. (3d) 367, the Ontario Court of Appeal concluded that even though a person was not technically a party in quasi-judicial proceedings under the Employment Standards Act, he had had the opportunity to and did in fact participate in those proceedings and had the full benefits of being a party, and that he should therefore be treated as a privy as a matter of policy. The Court concluded that all of the requirements of issue estoppel were met in those circumstances.

21. Those cases are readily distinguishable from this one. In this case, Bricklayers' Local 1 did not and has not agreed to be bound by the Plan. Nor is it so bound by operation of any legislation, or by the private law of the parties to the Plan.

22. Further, the Plan proceeded in this case as it usually does according to Mr. Benson; that is, without notice to either Local Union involved, and without giving either Local Union any opportunity to participate. Indeed, Local Unions are prohibited from actually participating in a Plan proceeding. And on the evidence before the Board in this case, the Bricklayers' International Union ignored the wishes of its Local 1.

23. In these circumstances, there is nothing in law which operates to make Bricklayers' Local 1 a privy of the Bricklayers International Union in the proceeding before the Plan. It would also be inappropriate to consider Bricklayers' Local 1 to be a privy of the International as a matter of labour relations policy. Accordingly, issue estoppel does not apply.

24. Under the Labour Relations Act, 1995, the Ontario Labour Relations Board cannot sit in review of any other tribunal (see Windsor Western Hospital Inc. v. Mordowanec, 1986 CanLII 2635 (ON HCJ), [1994] 56 O.R. (2d) 297, Ontario Divisional Court). Nor does the Board have any particular interest in doing so. However, given the position of the Plan before the Board in this case, and specifically the comparisons Mr. Benson made between what the Plan does and how the Board approaches jurisdictional disputes, I consider it appropriate to make some amicus curiae comments of my own.

25. First, some comments about this particular case. Findlay-Jones Insulation Limited applied to the Plan for a determination of the jurisdictional dispute herein by letter dated September 30, 1997. The Plan applies only to employers who have either voluntarily stipulated to the Plan, or who are members of an employers' organization which has done so. There was a vague assertion by Findlay-Jones that it was stipulated to the Plan when it made its complaint. But there is no evidence, that that is the case. Findlay-Jones' September 30, 1997 letter does contain an assertion that it was a stipulated employer, but it does not contain a statement describing how it was stipulated (something which Article IV of the Plan's Procedural rules specifically requires). Further, in his October 17, 1997 decision, Arbitrator Butt found that Findlay-Jones was stipulated to the Plan by virtue of a stipulation agreement dated October 9, 1997 (not October 7, 1997 as suggested in my March 6, 1998 decision in Board File No. 2253-97-G). That is, it appears that Findlay-Jones was not entitled to make a complaint to the Plan, and that the Plan was, by operation of its own private law, not entitled to entertain the September 30, 1997 complaint. It is far from clear that this defect could have been cured nunc pro tunc by the filing of a subsequent stipulation agreement. It appears that Bricklayers' International Union challenged Findlay-Jones Insulation Limited's right to refer the dispute to the Plan, but this seems not to have troubled Arbitrator Butt at all.

26. More importantly, notwithstanding the prohibition in Article II section 2 of the Plan's Procedural Rules (see paragraph 11, above) Article VII section 1 of the Plan's Rules requires that:

ARTICLE VII

SELECTING AN ARBITRATOR

1. Upon receipt of a request to arbitrate, the Administrator shall send to all directly affected parties a list of impartial arbitrators, knowledgeable about the construction industry, chosen by the Joint Administrative Committee.

(emphasis added)

By itself, this may be ambiguous, and given the prohibition in Article II section 2 it might suggest that a Local Union is not a "directly affected party" for purposes of the Plan's Rules. But in light of how the construction industry actually works in Ontario, how can it be that a Local Union in Bricklayers Local l's position is not a directly affected party? On the Bricklayers' Union side of the jurisdictional dispute, Local 1 is the affected party. Further, Article VI section 2 (d) of the Plan itself (which takes precedence over the Plan's Rules) provides that:

ARTICLE VI

CONTINUATION OF WORK

Section 2. (d) The Arbitrator, with the assistance of the Administrator, shall notify the employer, the local union(s) and the appropriate National or International Union(s) and Employer Association(s) by facsimile of the place and time he has chosen for this …

(emphasis added)

That is, under the terms of the Plan itself, a Local Union is entitled to notice of a Plan arbitration hearing. What could be the purpose of such a provision other than to give a Local Union an opportunity to participate, something which the Plan steadfastly asserts a Local Union cannot do? However, it appears that Arbitrator Butt was either unaware of this provision, or he was not troubled by his failure to give the requisite notice to Bricklayers' Local 1.

27. Turning to some more general matters, Mr. Benson described the Plan's approach to jurisdictional disputes as "holistic", which he sought to contrast with what he characterized as the Board's "forensic" approach. A holistic approach is one which looks at the whole picture, and in which the whole is considered to be greater and more important than the sum of the individual parts. Anyone who is familiar with the Board's approach to jurisdictional disputes knows that the Board's approach is to look at both the parts and the "whole" each and every time. Although there is a "boiler plate" set of factors which the Board considers automatically in every case, the Board will consider any relevant factor which any party asks it to, or which it appears to the Board ought to be considered.

28. The relevant dictionary meaning of "forensic" is "of or used in courts of law", suggesting an after the fact dissection of events. Perhaps Mr. Benson used this term to highlight the fact that the Plan will only deal with jurisdictional disputes where the work is ongoing (which may be one reason why the Plan deals with only a very small percentage of the actual jurisdictional disputes which arise in Ontario), while the Board will deal with (or least consider whether it should deal with) any jurisdictional dispute complaint which is brought to it, whether or not the work has been completed. In recent years, the Board has succeeded in streamlining its processes so that most jurisdictional disputes complaints are now dealt with much more quickly than was the case in the past (although whether the Board will continue to be able to do so is another question). The anomaly in this case is a product of the peculiar history of the proceeding which does not reflect how the process usually works. The Board now deals with more jurisdictional disputes before the work has been completed. That said, the Board still deals with a substantial number of disputes in which the work has been completed by the time it either gets to the Board or a decision is issued.

29. It is not clear to me why the Plan's approach is better for the construction industry than the Board's. One result of the Plan's approach is that jurisdictional disputes which arise on short term jobs, or near the end of bigger jobs, will not be dealt with. Is it any less important that such disputes be dealt with even if the work has been completed? Would a resolution of the dispute not be useful for the purposes of future jobs and dealings between the trades? I appreciate that all jobs are different, and that the determination of a jurisdictional dispute in one case may have limited "educational" or other value for other jobs. But the Board's experience has been that in many cases there is a significant future value to determining jurisdictional disputes even if the work has been completed. Indeed, this may help explain why the prohibition in the Plan against taking a jurisdictional dispute anywhere other than to the Plan is, on Mr. Benson's own evidence, more ignored than honoured. Notwithstanding that all of the International Building Trades Unions which operate in Ontario are stipulated to the Plan, and that they and the Plan would have it that all of their Local Unions are also stipulated, the fact is that the Board deals with a substantial number of jurisdictional disputes in the construction industry every year.

30. Mr. Benson also said that the Plan operates to prevent costly work stoppages, and that it does not award damages. The Labour Relations Act, 1995, the public law which governs all labour relations of all construction industry parties in Ontario, also prohibits work stoppages while a collective agreement is in effect. Indeed, the Board (currently) acts even more quickly than the Plan does in response to allegations that an unlawful strike or lock-out has been threatened or is taking place, and under section 99 (the jurisdictional dispute complaint provision) of the Act, the Board can make any interim order it considers appropriate in a jurisdictional dispute proceeding. Further, the Board's general approach is not to award damages in jurisdictional dispute complaints either. However, the Board does not consider a blanket prohibition against damages to be appropriate. The Board retains the discretion to award damages. This can act as a deterrent to the few employers who might otherwise ignore a clear and well established jurisdictional separation between trades, and recognizes that there may be circumstances, however rare, in which damages are an appropriate remedy.

31. Finally, the Plan's rules provide that filing a grievance under a collective agreement is a prohibited "impediment" (Article III section 3 (a). With respect, filing a grievance is an accepted and proper way to bring a complaint to the attention of an employer. Filing a grievance does not stop the work being performed. It is the rare jurisdictional dispute which does (or can) arise under other than a collective agreement. I do not understand how a grievance can be said to be an "impediment", either as a matter of law or labour relations policy, any more than filing a jurisdictional dispute can be. Nor, with respect, does either the Plan, or an arbitrator under the Plan, have the jurisdiction to prohibit a Local Union from exercising its rights under a collective agreement or the Labour Relations Act. And the Plan certainly has no jurisdiction to tell the Board what to do.

32. All of that said, what ought the Board to do now? Ordinarily, the Board would proceed to hear the jurisdictional dispute complaint, and then the grievance, if necessary. But this is not the ordinary case. As I noted at the outset, the history of this proceeding has been detailed in earlier Board decisions , and need not be repeated. Suffice to say, that this litigation began with a grievance filed on September 11, 1997 by Bricklayers' Local 1 under the Bricklayers provincial agreement. The grievance was referred to the Board on September 17, 1997. The Board scheduled a hearing for October 1, 1997. By letter from counsel dated September 29, 1997, Cement Masons' Local 598 indicated its intention to intervene, and by letter dated September 30, 1997, Bricklayers' Local 1 advised the Board that on the basis of Cement Masons' Local 598's undertaking to file a jurisdictional dispute complaint with the Board, the parties had agreed that the grievance proceeding (which raised a work jurisdiction issue) be adjourned pending the Board's determination of the jurisdictional dispute. That same day, Findlay Jones asked the Plan to deal with the jurisdictional dispute, notwithstanding that it apparently was not stipulated to the Plan, and notwithstanding that it was aware of Cement Masons' Local 598's undertaking, and that the company had agreed that the grievance proceeding be adjourned until the Board determined the jurisdictional dispute. Cement Masons' Local 598 did not honour its undertaking. Instead, it used the time it had bought to join with Findlay-Jones in making an end-run around Bricklayers' Local 1 and the Board, which the parties had effectively agreed to as the litigation forum. This conduct, by both Findlay-Jones and Cement Masons' Local 598 is an abuse of process, and it can neither be countenanced nor ignored. Now Findlay-Jones, perhaps recognizing the difficulties it may face if it tries to enforce the decisions Plan Arbitrator Butt made in its Cement Masons' Local 598's favour, seeks to have the Board determine the jurisdictional dispute it thought fit to take to the Plan. And of course, Cement Masons Local 598 seeks to come in through the back door to participate in the proceeding.

33. The Act no longer contains a provision which prohibits the Board from inquiring into a jurisdictional dispute complaint where a collective agreement provides that a work assignment dispute be referred elsewhere. Instead the Board enjoys a broad discretion to inquire into a jurisdictional dispute complaint or not, as the Board considers appropriate.

34. If the jurisdictional dispute complaint herein had been filed by Bricklayers' Local 1 or if Bricklayers' Local 1 wanted the Board to deal with it, the Board would probably exercise its discretion to do so in these circumstances. But this is neither Bricklayers' Local l's complaint nor its desire. On the contrary, Bricklayers' Local 1 argues that the jurisdictional dispute should not proceed, and that its grievance should.

35. In the circumstances, I agree. Findlay-Jones and Cement Masons Local 598 have abused the Board's processes, and they are not entitled to the benefit of those processes now. They decided to skirt the Board and take the matter to the Plan. It is appropriate that they bear the consequences of doing so. The Board therefore considers this to be an appropriate case in which to exercise its discretion not to inquire into the jurisdictional dispute complaint in Board File No. 48 l0-97-JD.

36. The Registrar is directed to schedule the grievance in Board File No. 2253-97-G for hearing.

37. The Board (differently constituted) has previously (and quite rightly) determined that Cement Masons' Local 598 has no status in the grievance proceeding. I am satisfied that the Plan has no status there either.

38. I am not seized with the grievance proceeding.