[1999] OLRB REP. JANUARY/FEBRUARY 1

2108-98-G International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 555, Applicant v. Adam Clark Company Ltd., Responding Party v. Ontario Sheet Metal Workers' & Roofers' Conference, Intervenor

Adjournment - Construction Industry - Construction Industry Grievance - Jurisdictional Dispute - Practice and Procedure - Board adjourning grievance referral under section 133 of the Act in order to permit filing of jurisdictional dispute complaint

BEFORE: Lee Shouldice, Vice-Chair.

APPEARANCES: David McKee and Steve Silversides for the applicant; Charles Humphrey, Jeff Murray and Lionel Coleman for the responding party; Jerry Raso and Tim Fenton for the intervenor.

DECISION OF THE BOARD; January 27, 1999.

1. This proceeding is a construction industry grievance, which was referred to the Board for arbitration in accordance with section 133 of the Labour Relations Act, 1995 (hereinafter "the Act"). This matter came on for hearing before this panel of the Board on October 20. 1998. Prior to the commencement of the hearing, I was provided with written authorization by the Alternate Chair of the Board to sit alone on this proceeding, in accordance with section 110(1 4)(a) of the Act.

2. The narrow issue which was argued before me. on facts which were agreed amongst the parties, was whether it was appropriate to adjourn this proceeding in order to permit for the filing of a jurisdictional dispute application, or whether this matter ought to proceed on the merits as a grievance arbitration. The responding party (hereinafter "Adam Clark") and the intervenor (hereinafter "the Sheet Metal Workers") request that the proceeding be adjourned in order to pursue a work assignment application. The applicant (hereinafter "the Boilermakers") requests that the application proceed as a grievance referral.

3. The request to adjourn was made in the wake of a recent decision of the Board (see AGS Contract Glazing Limited, [19981 OLRB Rep. JulIAug. 533) to which counsel desired to make reference. The Vice-Chair of the panel of the Board which heard that case is the undersigned. At the time that this proceeding was argued, the AGS Contract Glazing decision was under reconsideration, at the request of the applicant in that proceeding. In the circumstances, the parties agreed to argue the request for adjournment, await the decision of the Board on the reconsideration request in AGS Contract Glazing, and make further submissions as they saw fit upon receipt of that decision. A decision of the Board refusing the request for reconsideration in AGS Contract Glazing was issued on November 12, 1998. By way of Board endorsement dated November 13, 1998, I directed that the Registrar of the Board provide a copy of the AGS Contract Glazing reconsideration decision to the parties to this proceeding, and that submissions be made by the parties on that decision. The parties have now had the opportunity to make those submissions. This decision deals with the adjournment request made by Adam Clark and the Sheet Metal Workers in this proceeding.

4. As noted above, for the purposes of arguing the adjournment request, there was no dispute regarding the facts of the case. Adam Clark is bound to the Provincial ICI collective agreement between the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and the Boilermaker Contractors' Association. It is also bound to province-wide ICI collective agreements between the Ontario Erectors Association and the International Association of Bridge, Structural and Ornamental Ironworkers and the Ironworkers District Council of Ontario (hereinafter "the Ironworkers"), and the Ontario Sheet Metal and Air Handling Group and the Sheet Metal Workers International Association and the Ontario Sheet Metal Workers' Conference. Accordingly, Adam Clark is bound to ICI collective agreements with the Boilermakers, the Sheet Metal Workers and the Ironworkers, amongst others.

5. Adam Clark successfully obtained a contract to build a compressor station for Trans Canada Pipe Lines in or around Kenora, Ontario. It subcontracted the work in question (the assembly and erection of intake and exhaust manifolds and ductwork) to Lakeshore Ventilation Inc. (hereinafter "Lakeshore"). Lakeshore employed members of the Ironworkers and the Sheet Metal Workers to perform the work in question. Lakeshore is bound to the Sheet Metal Workers' ICI collective agreement. Following the referral of its members to Lakeshore for the purposes of performing this work the Ironworkers filed an application for certification and a certificate has now issued (see Board File 2103-98-R, decision dated October 7, 1998). There were unemployed members of the Boilermakers available to perform the work in question at the time it was performed. The work in question is encompassed within the claimed trade jurisdiction of all three of the Boilermaker, Sheet Metal Worker and Ironworker trades, as described by their respective ICI agreements. There is no dispute that the Boilermakers' ICI collective agreement (as well as the other ICI agreements binding Adam Clark to the other two trades in question) requires that a contractor bound to that agreement which desires to subcontract any work falling under that agreement do so only to a company that is bound to the agreement.

6. On September 14, 1998, the Business Manager of the Boilermakers, Mr. J.N. Ross, wrote to Adam Clark indicating that he had no choice but to take Adam Clark to the Board because Lakeshore had awarded the work in question to members of the Sheet Metal Workers and the fronworkers. Previously, on July 29, 1998, Mr. Ross had written to Adam Clark and advised the company as follows:

Further to our conversation of this morning I have spoken to Cedo Jankovic of Lakeshore Ventilation. He has informed me that he intends to use 5heetmetal workers to install intake and exhaust duct including filter and silencers at the Kenora Compressor Station.

One of his comments was that he has no agreement with the Boilermakers therefore no obligation to us. I suggested that he could sign our agreement immediately if he so chooses. As you are probably aware, Adam Clark has a contractual obligation to the Boilermakers in accordance with Article 29:00 of our collective agreement. This article stipulates that if you sub-contract Boilermakers work it must be to a Boilermaker signatory contractor.

For your information, I am forwarding a letter of assignment from Cedo Jankovic awarding a similar system to the Boilermakers. It is evident that Cedo is fully aware of the proper jurisdiction, I ask your assistance in influencing his decision on using the proper trade (Boilermaker).

I trust that we will be able to settle this matter in an amicable manner.

7. It was in the context of the above agreed-upon facts that the request for an adjournment of this proceeding was argued. I will not outline in detail the submissions of the parties, as I propose to deal with the salient arguments in the course of providing my decision and reasons for that decision. Briefly, though, it was the submission of counsel for Adam Clark that the circumstances reflect a classic jurisdictional dispute, and that the grievance ought to be adjourned to permit for the filing of a work assignment application. In particular, counsel submitted that the Board's analysis in Robertson Yates Corporation Limited, [1992] OLRB Rep. Apr. 507 ought to be applied to the facts of the case. Counsel submitted that the decision of the Board inAGS Contract Glazing was distinguishable from the situation before the Board on the basis that in that decision, the general contractor was bound to a single trade and did not have multiple trade obligations, as does Adam Clark. Counsel for the Sheet Metal Workers supported this result for substantially the same reasons as those argued by Adam Clark.

8. Counsel for the Boilermakers submitted that the Board's decision in AGS Contract Glazing dictates that the Board not adjourn this proceeding. Counsel argued that that decision stands for the proposition that the grievance arbitration can be dealt with separately by the Board independently of the jurisdictional dispute. There was (and is) no work assignment application before the Board, but in the absence of such an application, the grievance can still proceed on the merits. Counsel disagreed with opposing counsels' suggestion that the AGS Contract Glazing decision could be distinguished on the basis of the number of trades which bind the general contractor. It was suggested that Adam Clark could avoid the difficulties inherent in this proceeding by subcontracting the work in question to a subcontractor bound to all three of the relevant ICI agreements.

9. For the reasons that follow, I am of the view that this proceeding ought to be adjourned in order to permit for the filing of a work assignment dispute application.

10. There can be no question that the approach taken by the Board in Robertson Yates makes sense, from a practical standpoint. Given the reality of the breadth of trade union jurisdiction clauses contained in the provincial ICI collective agreements, and the fact that general contractors are, more often than not, bound to more than one provincial ICI collective agreement, the likelihood of jurisdictional battles arising during the course of a construction project is high. For the reasons identified in Robertson Yates, in appropriate circumstances it is preferable for the Board to deal with a claim or demand for work as a jurisdictional dispute rather than as a grievance arbitration in which only some of the parties to the former proceeding will be entitled to participate.

11. On the facts of this proceeding, the circumstances suggest to the Board that the grievance arbitration proceeding ought to be adjourned, pending the filing of a work assignment dispute application. Counsel for the Boilermakers stated during the course of argument that it was not his client's desire to require Adam Clark to pay for the work in question more than once through the vehicle of a grievance arbitration. That being said, though, the practical effect of not adjourning this proceeding is to put Adam Clark at the risk of such a result. The answer to that problem is not to require Adam Clark to subcontract to multiple trade subcontractors, as was suggested by counsel for the Boilermakers. In the construction industry, subcontractors tend to be specialty subcontractors, which by definition will more than likely be bound to fewer collective agreement obligations than general contractors who initially subcontract the work. Accordingly, there are relatively few subcontractors which are bound to a multiplicity of collective agreement relationships which would protect the interests of a general contractor such as Adam Clark. Additionally, it will not always be evident to a general contractor which of its trades may make a claim on a particular piece of work which is subcontracted. Here, for example, Adam Clark asserts in its response to the grievance that it had previously subcontracted the work in question on numerous other occasions to companies in contractual relations with the Sheet Metal Workers and the Ironworkers, but not the Boilermakers. If Adam Clark is required to subcontract work to a subcontractor with the full panoply of collective agreement obligations that it works under, as a practical matter it will be unable to subcontract work at all. That is not a satisfactory result.

12. I have considered the argument of counsel for the Boilermakers regarding the effect of the AGS Contract Glazing decision on the facts of this case. Quite simply, I am of the view that the applicant has read far too much into that decision. The AGS Contract Glazing decision was not intended to (nor does it) reject the approach taken by the Board in Robertson Yates. At its core, AGS Contract Glazing stands for the proposition that the term "employer" in section 99 of the Act refers to the company directly hiring and employing employees to do the work in question, which in that case was AGS Contract Glazing. As argued, the Board in AGS Contract Glazing was asked by the parties to choose as between the practice of PCL Constructors Canada and that of AGS Contract Glazing as "employer" practice for the purposes of that work assignment proceeding. On the facts of that case, the Board determined that the evidence of "employer practice" encompassed the practice of AGS Contract Glazing, the entity which actually assigned the work, and not PCL Constructors Canada Inc., the general contractor.

13. The AGS Contract Glazing decision does state that the applicant in that proceeding, the Tronworkers, had a potential remedy in the grievance referral that had been filed with the Board, notwithstanding that it was unsuccessful in the work assignment proceeding. That is for the simple reason that PCL Constructors Canada was, as is noted above, a single trade general contractor. PCL Constructors Canada was, at all relevant times, bound only to the Ironworkers ICI collective agreement. PCL Constructors Canada asserted that it had subcontracted work to AGS Contract Glazing, a company bound only to the Glaziers agreement, because no subcontractor bound to the Ironworker's ICI agreement had bid to do the work in question according to specifications. Either PCL Constructors Canada had violated the subcontracting clause in question by subcontracting to AGS Contract Glazing, or it had not as a result of a lack of bidders. That question is one that is properly placed before a board of arbitration, and because PCL Constructors is bound only to the Ironworkers, the question underlying that dispute can be litigated as a grievance arbitration independently and apart from any jurisdictional dispute proceeding.

14. But the facts of this case are entirely different. Adam Clark is not bound to just the Boilermakers' ICI agreement. It is also bound to the Ironworkers' and Sheet Metal Workers' ICI agreements. A dispute over the proper assignment of the work in question in this case involves three different trades at the general contractor level. These circumstances cry out for a resolution of the underlying jurisdictional claims beyond the partial resolution that could be achieved by holding a grievance arbitration pursuant to the Boilermakers' ICI agreement. That is the thrust of the Board's decision in Robertson Yates.

15. Applying the approach taken by the Board in Robertson Yates, an adjournment of this proceeding ought to result in order to permit for the filing of a jurisdictional dispute application. It will be recalled that in Robertson Yates the Board required that two prerequisites be established in order for the Board to consider any particular claim for work to be jurisdictional in nature. First, the union must file a grievance or make a demand for work as against the general contractor alleging a breach of the non-subcontracting clause. There is no question that this element has occurred in this case. Secondly, the grievance or demand in question must have been communicated to the subcontractor - here, Lakeshore. On the facts before me, that communication has resulted through Mr. Ross, who spoke to the principal of Lakeshore and suggested that Mr. Jankovic sign the Boilermakers' ICI agreement immediately. There is no doubt from Mr. Ross' letter of July 29, 1998 that he communicated to the subcontractor that the Boilermakers were demanding that the work in question be assigned to members of the Boilermakers. In the words of section 99(1)(a) of the Act, the Boilermakers' through its conversations with Mr. Jankovic "is requiring an employer to assign particular work to persons in a particular trade union ... rather than to persons in another".

16. Accordingly, this proceeding is adjourned to permit for the filing of a jurisdictional dispute application. The intervenor Sheet Metal Workers has undertaken to file same in its intervention. The Sheet Metal Workers Union is, therefore, directed to file same within 30 days of the date of this decision.