3959-99-JD Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Ontario Council of the International Union of Painters and Allied Trades, International Union of Painters and Allied Trades, Local 1795 Glaziers and Metal Mechanics, International Union of Painters and Allied Trades, Local 1819, Glaziers and Metal Mechanics; Steel City Millwork; Vanbots Construction Corporation, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
APPEARANCES: J. David Watson and Walter Tracogna for the applicant; A.M. Minsky and Dermot Lynch for Ontario Council of the International Union of Painters and Allied Trades, International Union of Painters and Allied Trades, Local 1795 Glaziers and Metal Mechanics, International Union of Painters and Allied Trades, Local 1819, Glaziers and Metal Mechanics; John Williams for Steel City Millwork; Garry Orser for Steelgate Security Products Ltd.; Felix Geneau for 1427862 Ontario Inc. o/a D.G.W; no one appearing for Vanbots Construction Corporation.
DECISION OF THE BOARD; December 5, 2000
This is an application under section 99 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended concerning a complaint over the assignment of certain work to members of the applicant. The responding trade union parties (the “Glaziers”) claim that certain work performed by members of the applicant at the Maplehurst Correctional Facility (Maplehurst) in Milton (which is in Board Area 8) should have been assigned to their members.
The work in dispute relates to the installation of partition systems designed for a high security area, such as a correctional facility, and more particularly to the installation of the transparent laminated plastic or polymer materials known as Lexan sheets or Lexguard laminates in those partition systems. The parties submitted that the work in dispute involved the cleaning and preparing of frames to receive the transparent materials, including Lexan sheets, Lexguard laminates and other related materials; cutting those Lexan sheets, Lexguard laminates and other related materials to size; inserting those materials in the previously prepared frames, and securing that material in the frames by taping and beading the transparent materials.
Vanbots Construction Corporation (“Vanbots”) was the general contractor retained in relation to construction work undertaken at Maplehurst. Vanbots subcontracted the fabrication and installation of the security system, including its various components, such as hollow metal frames for doors and partitions, hardwire screens and glazing and furniture, to Steelgate Security Products Ltd. (“Steelgate”). Steelgate, in turn, subcontracted the installation of the various components, including the security windows in the partitions and doors to Steel City Millwork (“Steel City”). Vanbots, Steelgate, and Steel City are all bound by the provincial collective agreement with the applicant.
Vanbots approved the assignment of the work it described as “install security glazing into security doors and screens” to members of the applicant. Vanbots is also bound by the provincial collective agreement with the Glaziers. The Glaziers filed a grievance against Vanbots over that assignment, claiming that persons not covered by their collective agreement with Vanbots were performing work that came within the scope of that collective agreement. Vanbots and the applicant responded to the grievance, ultimately resulting in the parties agreeing to adjourn the grievance referral to allow the applicant to file and proceed with this application.
After this application was filed, but prior to it coming before the Board for hearing, Steel City Millwork ceased performing the installation work that is the subject of this dispute. That work was subcontracted to 1427862 Ontario Inc. o/a D.G.W. (“DGW), who was performing the work in dispute at the time this matter was heard by the Board.
When this matter came before this panel of the Board, the applicant asserted at the commencement of the hearing that there was a reasonable apprehension of bias by reason of the presence of George McMenemy on the panel of the Board that had been assigned to hear and determine this matter. Following the submissions of the parties, the Board issued the following oral decision:
Ruling No. 1 Apprehension of Bias
This is a complaint concerning a work assignment under section 99 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as am. Counsel for the applicant, on instructions from the applicant, objected to Board Member George McMenemy continuing as a member of this panel because his presence on the panel raises a reasonable apprehension of bias. The applicant does not assert actual bias.
Mr. McMenemy, prior to his appointment to the Board, was the business manager of the International Union of Painters and Allied Trades, Local 1795 (“Local 1795”), one of the parties to this proceeding. He was a journeyman glazier, holding a certificate of qualification in the glazier and metal mechanic trade under the Trade Qualification and Apprenticeship Act, R. S. O. 1990, c. T. 17. Mr. McMenemy resigned from his position as Business Manager of Local 1795 in November 1992 when he accepted his appointment to the Board and resigned from his membership in Local 1795 and the international union approximately three years ago. Mr. McMenemy is, as an experienced journeyman, familiar with glazing work. The applicant submits that Mr. McMenemy’s previous association and role with Local 1795 and his presence on this panel causes it concern.
The employer parties before us had no submissions on the objection raised. Counsel for the responding unions submitted that there was no substance to the objection.
This panel of the Board had recently commented on this issue in Ontario Hydro, [1999] OLRB Rep. Oct./Nov. 870 at 871-872 where the Board wrote:
The test for whether there is a reasonable apprehension of bias is an objective one. See Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. In that case, the Supreme Court of Canada wrote at pg. 394:
…the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.”
- In Marques v. Dylex, (1977), 1977 CanLII 1157 (ON HCJ), 81 D.L.R. (3d) 554, a case in which the Vice-Chair of the panel of the Ontario Labour Relations Board assigned to the matter was challenged on the ground of reasonable apprehension of bias, the Divisional Court commented upon the people appointed to the Board and their backgrounds at page 566-7:
Further, on a more general plane, the nature and functions of the Board itself have to be regarded. The fact that a Judge in similar circumstances would not, I would think, have heard the case is not determinative. (In saying this I am not expressing an opinion on minimum legal standards.) We can take judicial notice, if it is not apparent from the Labour Relations Act itself, that members of the Labour Relations Board and in particular the chairmen of panels will have had experience and expertise in the law and labour relations. The Government of Ontario looks to people with such a background in making appointments. Most, if not all of those appointed, are bound to have some prior association with parties coming before the Board. In this connection the remarks of Mr. Justice Hyde in R. v. Picard et al., Ex p. Int’l Longshoremen’s Ass’n, Local 375 (1968), 1967 CanLII 637 (QC QBA), 65 D.L.R. (2d) 658 at p. 661, [1968] Que. Q.B. 301, are apposite:
The only basis for any apprehension of bias submitted by appellant is that Commissioner Picard had been consulted more than a year before his appointment as Commissioner by Aluminum Limited which is a company which controls one of the parties before the Commission, namely, the respondent Saguenay Shipping Ltd. … I am quite unable to anticipate a biased approach by Commissioner Picard on the ground raised by appellant. Professional persons are called upon to serve in judicial, quasi-judicial and administrative posts in many fields and if Governments were to exclude candidates on such a ground, they would find themselves deprived of the services of most professionals with any experience in the matters in respect of which their services are sought.
Such people, having taken an oath of office (the Labour Relations Act, s. 91(18)) and, at least in the case of trained lawyers, being conscious of the necessity of ridding their minds of extraneous matters, it is not unreasonable to assume that they, in exercising their jurisdiction, will act in good faith.
Examples of where there are grounds for finding a reasonable apprehension of bias are found in Cathcart and Public Service Commission et al, (1975), 1975 CanLII 2337 (FC), 56 D.L.R. (3d) 1 at pg. 5-6:
The cases demonstrate that there are many circumstances which may show that actual bias exists, or alternatively that there are grounds on which persons may reasonably believe that bias exists or is to be apprehended. A simple case is where the person whose duty it is to decide the issue has a financial, economic or business interest in the success of one party in the litigation. In such circumstances it is often said there is a likelihood that the judicial officer "may make the cause his own”. Another is where there is such a personal relationship between him and one party however founded, as to lead other persons to the conclusion that he is likely to be favourably, or unfavourably disposed, to that party’s cause.
The two kinds of cases just mentioned are only example. The rule is of general application to all circumstances in which persons may reasonably believe that bias exists or apprehend reasonably that it is likely to exist.
Counsel for the respondents contended that a decision of a tribunal cannot be set aside on the ground that it has read or heard some evidence which it may afterwards hold was inadmissible. I agree, but that is not the situation here. In this instance, the whole of the respondent’s case was placed in the hands of the chairman of the Board in advance of the hearing and read by her. In my view the situation is somewhat analogous to one in which a Judge has discussed a forthcoming case with counsel for one party in the absence of counsel for the other party. In such a case, if the trial or any issue in the case is brought before the Judge for adjudication, it is my understanding that the Judge should disqualify himself from hearing it. The ground for so doing is, of course, the danger that he may be biased. Similarly, where a quasi-judicial board has read and become familiar in advance with one side of the issue upon which it is required to adjudicate, there is, in my view, a danger that the board has been so influenced by what it has read that its ability to act impartially at the subsequent hearing has been impaired. In other words, there is a likelihood that it has become biased, and it should be disqualified from hearing the case.
In our opinion there is absolutely no merit whatever to the applicant’s objection. Mr. McMenemy has been a member of the Board since November 1992. He took an oath of office at that time and has discharged his duties as a Board Member continuously from that time forward. His experience and knowledge of the construction industry generally and of the trade in which he holds a Certificate of Qualification does not give rise to any reasonable apprehension of bias; rather, in the words of the Divisional Court in Marques v. Dylex, supra, that “We can take judicial notice, if it is not apparent from the Labour Relations Act itself, that members of the Labour Relations Board…will have had experience and expertise in…labour relations. The Government of Ontario looks to people with such a background in making appointments. Most, if not all of those appointed, are bound to have some prior association with parties coming before the Board…. Such people, having taken an oath of office (the Labour Relations Act, s. 91(18)) and…being conscious of the necessity of ridding their minds of extraneous matters, it is not unreasonable to assume that they, in exercising their jurisdiction, will act in good faith.”
In our view, the knowledge and experience that Mr. McMenemy brings to this panel is a positive element that will assist in the fair disposition of this dispute.
The objection raised by the applicant is dismissed.
Following that ruling DGW and the applicant sought an adjournment of the hearing. After receiving the parties’ submissions on the motion for an adjournment, the Board issued the following oral decision:
Ruling No. 2 Motion for Adjournment by Applicant and DGW
1427862 Ont. Inc. o/a D.G.W. (“DGW”) and the applicant on behalf of DGW seek to adjourn the hearing to permit DGW to receive proper notice of this proceeding in order to permit it to participate in this proceeding. DGW also submits that it needs time to retain and instruct counsel in this matter.
DGW began performing the work that is the subject of this dispute in July 2000. It stepped into the shoes, according to the applicant, of Steel City Millwork, a party who had earlier received adequate notice of this proceeding. This application was filed in March 2000. The time for responses was extended to the end of April 2000. DGW’s predecessor, Steel City Millwork, had notice of this matter.
In our view, this proceeding should not be adjourned to allow an employer who began doing the work several months after the application was filed to have notice of the hearing. To do so would be to invite chaos in proceedings as the Board and the parties would never know until the day of hearing who might be involved.
While DGW may seek to participate and the Board can exercise its discretion to permit DGW to participate as a party to the proceeding as DGW finds it, the Board is not prepared to delay the hearing to allow DGW time to retain counsel and prepare for a hearing that had been set down long before DGW became involved in doing the work that is the subject of this dispute.
The motion by DGW and the applicant for an adjournment is denied.
After the Board denied the motion for an adjournment, Steelgate sought to be added as a party to the proceeding and, as a party, wanted an adjournment because it did not have adequate (or any proper) notice of this matter. After receiving the submissions of the parties on the motion made by Steelgate, the Board issued the following oral decision:
Ruling No. 3 Motion by Steelgate to be added as a party and for an adjournment
Steelgate Security Products Ltd. (“Steelgate”) seeks an adjournment of this proceeding to retain and instruct counsel. It did not receive notice of this hearing. Vanbots Construction Corporation (“Vanbots”) who did have notice of this proceeding subcontracted the work in dispute to Steelgate who in turn subcontracted the work in dispute to Steel City Millwork and more recently to 1427862 Ontario Inc. o/a D.G.W. Steelgate is not the employer who is or was doing the work, nor did it have any employees affected by the claim for the work in dispute. There was no grievance filed against Steelgate; rather the grievance giving rise to this work assignment complaint was filed against Vanbots. Steelgate therefore, in our opinion, has no right to participate in this proceeding which is concerned with a claim by the trade union responding parties that the work in dispute that was assigned to members of the applicant by Steel City should have been assigned to its members.
Under these circumstances, its request for an adjournment is dismissed
Although the Board ruled that Steelgate did not have a right to participate in the hearing, the Board, in the exercise of its discretion permitted the representative of Steelgate to make submissions with respect to the merits of the matter.
Merits of the Application
As noted earlier, the work in dispute related to the preparation of the frames that had already been constructed to receive the Lexan sheets and Lexguard laminates, actually placing and fitting those sheets or laminates in the frames and sealing that material to the frames by various means. Counsel for the applicant pointed out that the material used in the work in dispute was similar to the protective materials such as Plexiglas used in hockey arenas where there is a well established practice of members of the applicant doing the construction of the boards and frames and the installation of the Plexiglas.
Counsel submitted further that the use of the Lexan type materials in the construction of security facilities was a specialized type of construction that had been done by members of the applicant at other security institutions within the province, but outside of Board area 8. Counsel argued that the factor of economy and efficiency favoured the applicant because its members were already on site performing the framing work and that the installation of the Lexan materials was merely an extension of that work. It did not make economic sense to bring in a different crew or an individual who could do only the installation because the applicant’s members were properly assigned to perform the balance of the work (that was not in dispute) associated with the installation of the security system at Maplehurst.
Counsel for the applicant also submitted that the Carpenters’ collective agreement clearly covered the work in dispute and referred to the following provisions found in schedule “A” of that collective agreement. That provision has the heading: “Work claimed but not limited to” and then describes the work covered by that collective agreement in several paragraphs. The portions of that schedule “A” relied on by counsel for the applicant provided:
The setting of door frames and hanging of doors of metal, wood and any other composition, including [list of door types omitted]…as well as all on site hoisting and handling of such materials, and installing hardware by any means; the setting of window frames and hanging of sash, inside and outside blinds, windows and other frames.
The on-site assembly and erection of all wood, metal, plastic and composition partitions, including any welding of a plastic material, perimeter and curtain walls, whether built in place or prefabricated; the erection and installation or application of all…sheets composed of wood, pulp, plaster, asbestos or composition materials or any other material including combined or faced with metal or vinyl by whatever means of fastening.
Rigging into place and setting and aligning of laminated beams, posts, trusses or arches and composition panels, both interior or exterior, and modular or prefabricated structures…
Counsel for the applicant submitted that the work in dispute came well within the work jurisdiction set out in the applicant’s collective agreement since it involved the setting of window frames and the hanging of windows, as well as the erection and setting of plastic and composition panels. The Lexan and Lexguard materials, counsel suggested were nothing more than a form of panel or partition, and furthermore, that the phrase “…hanging of windows…” found in the collective agreement encompassed the work in dispute.
Counsel argued that the placement of transparent materials in frames and the associated sealing work is a part of the work carpenters are trained to perform. That submission was supported by the representative of DGW who submitted that he, as a skilled carpenter, had been trained to install glass and other transparent materials during his education and training at trade school.
Counsel for the applicant, together with the other employers submitted that work in dispute was specialized, and that it was so specific that the Board should only look at security installations carried out at correctional institutions, or at analogous work, which in counsel’s submission, was the installation of protective barriers at hockey arenas.
Counsel for the Glaziers took issue with the applicant’s interpretation of the Carpenters’ collective agreement. Counsel argued that the glazier trade is a discrete certified trade under the Trade Qualification and Apprenticeship Act, supra and not on the periphery of the carpenters’ trade as counsel for the applicant suggested. Security glazing, including the fabrication, installation and sealing of the Lexan and Lexguard material is a significant component of the Glazier and Metal Mechanic Trade training standards established by the Ontario Training and Adjustment Board. The work in dispute, according to counsel for the Glaziers is at the centre or core of the glazier trade. Counsel pointed out that interior glazing work in Board area 8 is carried out almost exclusively by members of the Glaziers. He argued that there is no basis for limiting the relevant area practice to the installation of security systems at correctional facilities or to the installation of protective barriers which include Plexiglas at hockey arenas.
In our view, it is not necessary to determine the precise scope of the work jurisdiction set out in the applicant’s collective agreement. The collective agreement is but one of several factors the Board considers in determining a jurisdictional dispute. As the Board has noted on several occasions, the many factors used in determining an appropriate work assignment are often reflected by the area practice, the most significant of the various factors weighed by the Board in determining a jurisdictional dispute. See for example, Aluma Systems Canada Inc., [1999] OLRB Rep. Mar./April 142 at paragraph 18; Brunswick Drywall Limited, [1982] OLRB Rep. 1143 at 1146. Even if the Board were prepared to find that skill, training and ability were relatively equal (which we would be reluctant to do given the specific evidence we received about the kind of training prescribed for the trade of glazier and metal mechanic compared with the minimal training provided to carpenters in relation to the type of work which is in dispute), and the factors of collective bargaining relationships and union constitutions were neutral, the factor of area practice overwhelmingly favours the Glaziers.
The material before the Board established that interior installation of glass or transparent glass substitutes that allow the transmission of light is done almost without exception by members of the Glaziers in Board area 8, the Board area in which the work in dispute arose and the only relevant Board area to consider in determining this matter. (See Commonwealth Construction Company, [1991] OLRB Rep. June 742 at 749, where the Board ultimately permitted area practice evidence to be adduced from beyond the Board area in which the work in dispute arose due to the special circumstances that existed.) Although counsel for the applicant argued that the installation of the security system using the Lexguard and Lexan materials made the work in dispute distinctive from the “usual” or typical interior installation work performed in Board area 8, we are satisfied that the nature of the work in dispute was not materially affected by the type of material that was installed. There was no evidence to suggest that unique skills, techniques or processes were applicable to the preparation and installation of the Lexguard and Lexan material or that the skills, techniques and processes used in the preparation and installation of other types of glass and glass substitutes were not applicable to the preparation and installation of the material at the centre of the work in dispute in this case. Furthermore, we note that the work in dispute involving similar material was done by members of the Glaziers when Maplehurst was first constructed in the 1970’s.
While the employer indicated a preference for using the applicant’s members, that factor and the factors of economy and efficiency and employer practice are not material to the Board’s determination in this matter as there was virtually no evidence of employer practice (except recent installations done under subcontract from Steelgate at other correctional facilities) and little about why the employer favoured the applicant over the Glaziers other than to suggest that the employer did not need to schedule the installation work separately from the construction of frames and doors because the same crew could do both types of work. In Premier Pipelines Limited, [1988] OLRB Rep. Oct. 1068 the Board noted at paragraph 22:
…the employer preference criterion would not be appropriate in this case. This is because…the Board has no evidence before it as to the basis of Premier’s [the employer’s] preference for assigning the disputed work to the U.A. Nor is there evidence either of any beneficial impact on the economy and efficiency of Premier’s construction operations on the Project from the assignment of the work to the UA, or of any adverse impact from assigning it to the Labourers.
Vanbots was bound by a collective agreement with both the applicant and the Glaziers. Neither Steel City nor Steelgate were bound by collective agreements with the Glaziers. Even though the absence of a collective agreement between the actual employer of the employees performing the work in question and the union that is claiming the work would be a factor to consider, the absence of a collective agreement is certainly not determinative of the correct assignment. See, for example, Ilena Construction Company, [1974] OLRB Rep. Nov. 775 at paragraph 20, application for reconsideration dismissed, unreported, Board File No. 3902-73-JD, decision dated February 13, 1975; J. R. Seguin et Fils Limited, unreported, Board File No. 1718-76-JD in which the Board directed the employer that did not have a collective agreement with the complainant local of the United Association Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Local 787) to assign the work in dispute to members of Local 787. The work in dispute in that case had been assigned to members of Local 71 of the United Association Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada which did have a collective agreement with the employer. See also Brunswick Drywall Inc., supra in which the work assignment was not disturbed even though the employer was bound by a collective agreement with union claiming the work but did not have a collective agreement with the union whose members were assigned the work in dispute; and Pigott Construction Limited [1992] OLRB Rep. June 748 at paragraph 10.
In the result, in view of the overwhelming area practice which establishes that in Board area 8, members of the Glaziers are almost invariably assigned to perform the work in dispute except in hockey arenas and in the absence of any compelling reasons that would cause the Board to disregard that overwhelming area practice and consider only the recent practice of the employer, the Board is satisfied that members of the Glaziers should have been assigned to perform the work in dispute.
The Board, therefore, pursuant to section 99(5) of the Act hereby directs Vanbots and Steel City to assign members of the Glaziers to perform the work of:
i) cleaning and preparing frames to receive transparent materials, including Lexan sheets, Lexguard laminates and other related materials;
ii) cutting transparent materials, including Lexan sheets, Lexguard laminates and other related materials to size for installation; and
iii) inserting those materials in the previously prepared frames and securing those materials in the frames by taping and beading those materials
at the Maplehurst Correctional Facility in Milton, Ontario.
“Harry Freedman”
for the Board