Labourers’ International Union of North America, Local 1089 v. Doug Chalmers Construction Limited
Parties
0547-00-G Labourers’ International Union of North America, Local 1089, Applicant v. Doug Chalmers Construction Limited, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: A. M. Minsky and Robert Leone for the applicant; Richard Drmaj and Doug Chalmers for the responding party; Norman L. Jesin and R. Carlton for United Brotherhood of Carpenters and Joiners of America, Local 1256.
DECISION OF THE BOARD; June 2, 2000
Decision
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act"). The United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Carpenters”) sought to intervene in this proceeding. Counsel for the Carpenters advised the Board prior to the commencement of the hearing that his client did not want to pay the hearing fee until the Board determined that the Carpenters would be permitted to intervene in the proceeding. The Carpenters also asserted that the requirement that they pay the hearing fee prescribed by Rule 144(c) of the Board’s Rules of Procedure before being entitled to participate in the hearing was ultra vires and may give rise to a denial of natural justice.
2The Board advised counsel for the Carpenters that the fee prescribed by Rule 144(c) must be paid before he would be permitted to make submissions concerning both the payment of the hearing fee and his client’s request to intervene. Counsel sought to have the Board waive the fee in order to allow him to make submissions to the Board with respect to the propriety of requiring that the hearing fee be paid by a party seeking to intervene in a proceeding under section 133 before the Board determines whether that party will be allowed to intervene. The Board pointed out that although Rule 44 permits the Board to relieve against the strict application of the Rules where it considers it advisable, Rule 147 provides that hearing fees must be paid no later than the commencement of the hearing and more importantly provides that Rule 44 does not apply to Rule 147. Thus, the Board determined that it could not waive the obligation to pay the hearing fee before receiving submissions with respect to the payment of the hearing fee and the Carpenters’ application to intervene.
3The hearing commenced after the Carpenters paid the hearing fee. They made submissions only with respect to their request to intervene in this proceeding. Counsel for the Carpenters suggested and other counsel agreed that rather than take up the hearing time with the fees issue, that issue could be dealt with by way of written submissions. The Board agreed. The fees issue, as the Board understood counsel’s submissions, is whether the Board’s Rules requiring a party seeking to intervene in a section 133 proceeding to pay a hearing fee before being permitted to make any submissions with respect to its right to intervene or before the Board determines that it does have the right to intervene are ultra vires or are otherwise improper because they may cause a denial of natural justice or are illegal or improper on other grounds on which counsel will elaborate.
4With the agreement of counsel, the Board fixed the following dates for filing written submissions. Counsel for the Carpenters must deliver to the Board and to the other parties his written submissions with respect to the fees issue on or before the close of business on Tuesday July 4, 2000. Counsel for the applicant and counsel for the responding party must deliver to the Board and to the Carpenters their written submissions in response on or before the close of business on Monday July 17, 2000 and counsel for the Carpenters must deliver his reply, if any, to the Board and to the other parties on or before the close of business on Monday July 24, 2000. If the Board does not receive a party’s submissions by the date fixed, we will deal with the matter without regard to any untimely written submissions that have been filed.
5Following the submissions of the parties with respect to the Carpenters’ request to intervene and the motion by the responding party and the Carpenters to adjourn the hearing of this matter until another proceeding involving these parties is determined, the Board issued the following oral ruling:
The applicant’s grievance raises two distinct claims. It asserts that the responding party has violated:
a) the hiring hall provisions of the collective agreement by hiring labourers through an arrangement with Cope Construction Company (“Cope”) by which the responding party actually employed labourers who were on the payroll of Cope; and
b) the foreman provisions of the collective agreement by failing to appoint the requisite number of foremen to supervise the labourers who were the responding party’s employees.
The Carpenters seek to intervene in this proceeding and both the Carpenters and the responding party seek an adjournment of this matter on the basis that this matter should be deferred until a series of grievances arising out of the ongoing dispute between the applicant and the responding party over scaffolding work are determined by the panel of the Board seized with those matters.
We were advised that only one of the three job sites to which this grievance relates involved scaffolding work and that at that job, only four labourers out of a crew of about 13 labourers were involved in such scaffolding work. The responding party submitted that the foreman aspect of the grievance is really an attempt by the applicant to circumvent an earlier Board decision that suggested that a labourer foreman was not necessarily required to supervise labourers who tend carpenters erecting and dismantling scaffolding.
In our opinion, the “hiring hall” issue does not arise from the performance of scaffolding work. It is a discrete issue which requires the Board to determine whether the arrangement the responding party had with Cope violated the collective agreement. (Cope is bound by the same collective agreement to which the applicant and responding party are bound and there is no dispute that the persons doing the work on the responding party’s job sites who were paid by Cope in accordance with the collective agreement were members of the applicant.) That issue is a pure contractual dispute between the applicant and the responding party. We do not accept that the Carpenters have any legal interest in that dispute. Under these circumstances, we will proceed first to deal with the hiring hall issue and determine that matter before the Board proceeds with the “foreman” issue.
Whether the Carpenters have status to intervene in a hearing convened to deal with the foreman issue and the conditions, if any, that may be imposed before the Board permits their intervention may be determined by the Board at the commencement of the hearing on that issue should any of the parties wish to proceed with the foreman issue after the hiring hall issue is decided.
6Following the Board’s decision, the Carpenters withdrew from the hearing and the applicant called its first witness, Tony Valente. Counsel for the applicant completed his examination-in-chief of Mr. Valente, but in view of the time, counsel for the responding party requested that the hearing be adjourned before he commenced cross-examination. The Board concurred and with the agreement of the parties, fixed October 27 and December 1, 2000 and January 9 and 18, 2001 as dates for the continuation of the hearing of the hiring hall issue.
7The hearing of this matter will therefore proceed before this panel of the Board on the dates fixed by the Board.
“Harry Freedman”
for the Board