1796-99-JD Labourers’ International Union of North America, Local 1089, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663; Eastern Construction Limited; Norman Brandon Limited, Nordell Excavating Limited and Anderson Webb Limited, Responding Parties.
BEFORE: D. L. Gee, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: John Moszynski and Robert Leone for the applicant; Jim Fyshe and Bob Humphreys for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663; Erin Kuzz and Rod Petrie for Eastern Construction Limited; Richard J. Charney and Sam Morra for Greater Toronto Sewer and Watermain Contractors Association.
DECISION OF THE BOARD; April 5, 2000
This matter is an application concerning a work assignment pursuant to section 99 of the Labour Relations Act, 1995 (the “Act”) that raises a question as to which sector of the construction industry the work in dispute falls. This matter was scheduled for consultation on March 31, 2000.
At the commencement of the consultation, counsel for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 (“Local 663”) brought a motion that the Board not deal with the sector issue on the basis that it had not been raised in a timely manner. The Board ruled that it would deal with the sector dispute. Local 663 itself raised the issue of sector on September 9, 1999 in its response to a companion application in Board File No. 1629-99-U. Labourers’ International Union of North America, Local 1089 (“Local 1089”) served its reply submissions, in which the issue was squarely raised, on Local 663 over four weeks before the consultation was to take place. Local 663 thus had ample warning that the sector issue would be raised and could not have been taken by surprise when it was. The fact that Local 663 counsel did not review Local 1089’s submissions until one week before the scheduled consultation is simply not a basis for denying Local 1089 its right to raise the issue. The issue was raised by Local 1089 in a timely and appropriate manner.
The parties indicated that, in addition to the persons served by Local 1089 with its Reply Brief, the Mechanical Contractors Association, Ontario Pipe Trades Council and Lambton Sewer and Watermain Contractors Association were entitled to notice of the sector dispute. Accordingly, the consultation was adjourned to permit notice to be given to such persons.
At the consultation, Local 1089 was directed to deliver a copy of its Reply (in which its submissions concerning the sector issue are set out) to the Mechanical Contractors Association, Ontario Pipe Trades Council and Lambton Sewer and Watermain Contractors Association no later than June 16, 2000.
In addition, Local 1089 is hereby directed to deliver to: 1) all of the parties listed on the Certificate of Delivery that accompanies its letter of February 29, 2000 to the Board; and 2) the Mechanical Contractors Association, Ontario Pipe Trades Council and Lambton Sewer and Watermain Contractors Association:
(i) a complete list of the names and addresses of the persons served with a copy of the Reply (in order that they will know to whom and where to send their submissions in response should they wish to do so) and;
(ii) a copy of this decision,
no later than June 16, 2000.
Any person that wishes to participate in the Board’s proceedings with respect to which sector of the construction industry the work in dispute falls, is directed to deliver to all of the persons listed on the list of addresses circulated by Local 1089, and file with the Board, a response to Local 1089’s submissions concerning which sector of the construction industry the work in dispute falls, no later than July 7, 2000. Local 1089 is directed to deliver to all persons that file submissions in response to Local 1089’s Reply, and file with the Board, any reply submissions it wishes to make, no later than August 4, 2000.
This matter is scheduled for a hearing/consultation on August 18, 2000. The parties are agreed that they would like the Board to deal with the sector issue as part of the jurisdictional dispute consultation. The Board’s decision in JD Ellis-Don Limited, [1993] OLRB Rep. Nov. 1130 was cited as an example of where the Board had done so and a model of how this matter could proceed. Accordingly, anyone wishing to participate in this matter is hereby directed to attend on August 18, 2000 prepared to participate in a consultation and make full submissions to the Board with respect to the issue of sector. Those parties named in the original jurisdictional dispute application are directed to also come to the hearing/consultation prepared to participate in a full consultation concerning the proper assignment of the work in dispute. If, upon reviewing the materials filed in respect of the sector issue, any party intends to argue that it should be permitted to call evidence on any point going to the question of which sector the work in dispute falls, that party is hereby directed to serve notice of its position, including the nature of the evidence it will be seeking to call, on all other parties that have filed materials with the Board with respect to the sector issue, no later than August 11, 2000. In addition, any party that seeks to call evidence is directed to attend at the August 18, 2000 hearing consultation prepared to call the evidence in question. The panel of the Board assigned to hear the matter will determine whether it will hear the evidence in question.
Thus, a hearing/consultation will be conducted in respect of this matter on August 18, 2000 at the Board’s offices located at 505 University Ave, 2nd Floor, Toronto, Ontario commencing at 9:30 a.m.
This panel is not seized.
“D. L. Gee”
for the Board