1539-00-G The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 666, Applicant v. E. S. Fox Limited, Responding Party v. Sheet Metal Workers’ International Association, Local 537, Intervenor.
BEFORE: Laura Trachuk, Vice-Chair, and Board Members A. Pickell and G. McMenemy.
APPEARANCES: Laurence C. Arnold for the applicant; W. J. McNaughton for the responding party; J. Raso for the Intervenor.
DECISION OF THE BOARD; October 10, 2000
Decision
This is an referral of a grievance pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”). However, all of the parties agree that it is really a jurisdictional dispute as the applicant is claiming work which the responding party had assigned to the intervenor. The parties are agreed that the grievance should be adjourned pending the determination of the jurisdictional dispute. However, they cannot agree who should file the jurisdictional dispute application and ask the Board to make a direction with respect to that issue.
The parties agree that the Board’s practice has been to require the union intervening in the grievance to file the jurisdictional dispute application in the rare circumstance that the parties are unable to agree upon who will file it. The intervening union is given 30 days to file the application and if it fails to do so the grievance is brought back on. However, in a decision in December, 1999(see E.S. Fox Limited, [1999] OLRB Rep. Nov./Dec. 1005) the Board, including two members of this panel, suggested that given the circumstances of that case, the practice should be reconsidered. Those comments were obiter and the intervenor and the responding party are now asking that the practice be changed.
The Board, having had the opportunity to consider the question further, has decided that the practice should not be changed. The Board’s decision in E. S. Fox, supra, was made in the context of the determination that there was no basis for continuing with a jurisdictional dispute application filed by one union when a grievance was withdrawn by another union. In that context the panel suggested that it would be better if both applications were filed by the same union so that it could withdraw both. However, the Board would not necessarily, in other circumstances, dismiss a jurisdictional dispute application because a union, which did not file the jurisdictional dispute application, withdrew a grievance. The Board therefore considers it appropriate to continue its past practice. The Board’s reason for adopting this practice has been that the intervening union has no status to participate in the grievance proceeding. Therefore, if it wants to participate in the dispute with respect to the work it must file the jurisdictional dispute application. It appears that this practice worked for many years and the Board sees no reason that it should be changed.
This application is therefore adjourned to afford the intervenor the opportunity to file a jurisdictional dispute application. If that application is not filed within 30 days, the applicant may request that the grievance be brought back on. The grievance may otherwise be brought back on after the jurisdictional dispute has been determined.
“Laura Trachuk”
for the Board