3782-00-G Labourers’ International Union of North America, Local 1089, Applicant v. Doug Chalmers Construction Limited, Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1256, Intervenor.

BEFORE: D.L. Gee, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.

APPEARANCES: Alan Minsky and Robert Leone for the applicant; Richard J. Drmaj for the responding party; Mike McCreary for the intervenor.

DECISION OF THE BOARD; May 25, 2001

1This matter is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).

2Doug Chalmers Construction Limited (“Chalmers”) is bound by the Labourers’ ICI Provincial Agreement (the “Collective Agreement”). Chalmers employs members of the Labourers’ International Union of North America, Local 1089 (“Local 1089”) at the Imperial Oil Plant (the “Project”) in Sarnia. Chalmers is, amongst other things, performing scaffolding work during the Coker shutdown at the Project. The grievor, Joe Leone, is Local 1089’s steward on the Project. During the period of December 5, 2000 until early January 2001, some of the members of Local 1089 who were assigned to the Coker shutdown, performed work at the Project on an overtime basis. Mr. Leone was not assigned to the Coker shutdown and was not assigned overtime work.

3The relevant provisions of the Collective Agreement provide as follows:

Master Portion

Article 12

12.02 No discrimination shall be shown against any Union Steward for carrying out his duties, but in no case shall his duties interfere with the progress of work. It is agreed that Union Stewards may be appointed for each job of the Employer by a Business Representative of the Local Union who shall notify the job superintendent or other supervisory personnel of the Employer in charge of the job in writing or by telegram. A Union Steward shall be one of the last two (2) employees retained on the job by the Employer provided he is competent and capable of performing the remaining work on the job. Where there are two or more Stewards on a job, each Union Steward shall be one of the last two (2) employees retained on the portion of the job or operation for which the Steward was appointed an working provided the Steward is competent and capable of performing the remaining work on that portion of the job. The Union Steward on each job will be responsible for reporting any disputes to the Employer and the Local Union Representative so that these can be taken up in the proper manner without delay.

The Union Steward shall not be excluded from a gang for overtime work provided he is willing and capable of performing the available work.

Local Union Schedule for Local 1089 – Sarnia

Article 4

4.02 When any labourers are required to work overtime, there shall be a labour foreman who remains on the job to supervise such labourers. It is necessary to have the Union Steward present for such overtime work.

4.03 It shall be the responsibility and duty of the labour general foreman and the Employer to see that all members of Local 1089 receive an equal share of overtime work and lists of members who are working overtime, shall be given to the Union Steward of the job. The Union Steward will in turn, keep an accurate record of these lists for the use of the Union office and members.

4The grievance referral alleges that Chalmers discriminated against Mr. Leone, contrary to article 12 of the Master Portion of the Collective Agreement and article 4 of the Local 1089 appendix, by assigning him to work in an area of the Project removed from the Coker shutdown where scaffolding work was taking place. It is asserted that, by discriminating against Mr. Leone in such a fashion, Chalmers interfered with Mr. Leone’s ability to carry out his duties as steward at the Project. At the hearing, counsel for the applicant advised the Board that it was Local 1089’s assertion that all of the Local 1089 members employed at the Project were assigned to work in the area of the Coker shutdown except Mr. Leone.

5The grievance referral further asserts that, by not assigning scaffolding work at the Coker shutdown to Mr. Leone, Chalmers failed or refused to assign him overtime work in violation of the Collective Agreement.

6Finally, the grievance referral asserts that Chalmers failed or refused to provide lists of the overtime worked by members of Local 1089 during the Coker shutdown at the Project contrary to article 4.03 of the Local 1089 appendix.

7Chalmers filed a Request for Hearing and Notice of Intent to Defend/Participate. Chalmers identified United Brotherhood of Carpenters and Joiners of America, Local 1256 (“Local 1256”) as an interested party. On May 17, 2001 Chalmers filed its response. The response indicated that it was Chalmers’ position that the grievance referral ought to be adjourned pending the outcome of Board File No. 0019-00-JD, a jurisdictional dispute application filed on agreement of Chalmers, Local 1089 and Local 1256 and intended to determine the proper assignment of work performed by Chalmers in Sarnia in connection with scaffolding. In Chalmers’ submission, the Memorandum of Agreement entered into by Chalmers, Local 1089 and Local 1256 relating to the filing of Board File No. 0019-00-JD “left the parties with the understanding that all ‘other’ referrals of grievances would not proceed until the outcome of the jurisdictional dispute.” At the hearing, counsel for Chalmers readily conceded that the Memorandum of Agreement did not state that such was the case, rather, such was his understanding. The response asserts that a work jurisdiction issue has existed between Local 1089 and Chalmers for years wherein Local 1089 asserts “that any jobs involving scaffolding and carpenters require the presence of Labourers on site either by way of a ratio or simple presence.” Chalmers asserts that the grievance referral merely expands the proposition of work jurisdiction to assert that a steward must be assigned to scaffolding work.

8On May 17, 2001, Local 1256 filed a response. Local 1256 asserted that the grievance referral was simply a claim by Local 1089 that Chalmers assign work which was assigned to members of Local 1256 to members of Local 1089 and was thus a jurisdictional dispute that should be dealt with subsequent to the Board’s determination in Board File No. 0019-00-JD.

9At the commencement of the hearing, the Board sought clarification of the grievance from counsel for Local 1089. Counsel for Local 1089 advised the Board that it was Local 1089’s position that there were members of Local 1089 assigned to work on the Coker shutdown and that such individuals were assigned overtime work. Mr. Leone, the steward, was the only member of Local 1089 at the Project, not assigned to work in the area of the Coker shutdown. It was Local 1089’s position that Chalmers assigned Mr. Leone away from the area in which scaffolding work was being done in an effort to impede his ability to perform his duties as steward. Further, counsel for Local 1089 assured the Board that the overtime work that Local 1089 was asserting should have been assigned to Mr. Leone, was assigned to another member of Local 1089. Thus, the grievance was seeking a declaration that Mr. Leone should have been assigned overtime work performed by a member of Local 1089. The grievance was not seeking a declaration that Mr. Leone should have been assigned work performed by a member of Local 1256.

10Counsel for Local 1089 advised the Board that Local 1089 agreed that matters of a jurisdictional nature were not to be referred to the Board pending the outcome of Board File No. 0019-00-JD. At least one such matter, arising out of the same project that is the subject matter of the instant grievance, had not been referred for that reason. However, counsel for Local 1089 stated that the instant matter was referred as it did not raise a work assignment issue rather, it is simply a question of the proper interpretation and application of the Collective Agreement. Accordingly, counsel for Local 1089 asserted that there was no reason not to proceed with the grievance referral and further, that Local 1256 had no standing to participate in this matter.

11At this juncture, counsel for Local 1256 was advised that, if Local 1256 intended to make submissions to the Board on the issue of whether this matter ought to be adjourned pending the outcome of Board File No. 0019-00-JD, or its standing to participate in this matter, it was required to pay the fees prescribed by the Board’s Rule of Procedure (see: Doug Chalmers Construction Limited, [2000] OLRB Rep. July/August 608 in which Local 1256, in a grievance referral involving these same parties, was required to pay the hearing fee prescribed by the Board’s Rules of Procedure in order to make submissions to the Board concerning whether it would be permitted to intervene in the proceeding).

12The Board then heard submissions from counsel for Chalmers and Local 1256 in support of their clients’ position that this matter ought to be adjourned pending the outcome of Board File No. 0019-00-JD. Chalmers and Local 1256 submit that in order to reach a determination in the instant matter, the Board will have to engage in a two-stage enquiry. First, it is submit, the Board will have to determine whether the members of Local 1089 who performed the work claimed by Mr. Leone were entitled to perform such work. This question, Chalmers and Local 1256 submit, will require the Board to determine whether the work performed by members of Local 1089 was properly assigned by Chalmers to labourers or whether such work should have been assigned to members of Local 1256. Only if the Board determines that the work assigned to and performed by members of Local 1089 was in fact properly assigned to them would the Board move on to the second stage of the enquiry. At the second stage of the enquiry, the Board would determine whether, in its assignment of work to the members of Local 1089, Chalmers violated the terms of the Collective Agreement. Chalmers and Local 1256 argue that, given that the first stage of the enquiry requires the Board to make an assessment of the proper assignment of work, a question properly before the Board in Board File No. 0019-00-JD, that this matter ought to be adjourned.

13The Board did not call upon counsel for Local 1089 to respond. The Board ruled orally that it was not persuaded that determining the instant matter required the Board to determine if the work assigned to members of Local 1089 was properly assigned. The fact is that Chalmers, the employer, assigned the work to members of Local 1089. They worked as members of Local 1089 under the terms and conditions of the Collective Agreement in the performance of such work. It is simply not open to the employer, having assigned the work to members of Local 1089 and employed them in the performance of such work under the terms of the Collective Agreement, to now say that it is not required to comply with the terms of the Collective Agreement because it was in error when it assigned the work to members of Local 1089. The employer did assign the work to members of Local 1089. Members of Local 1089 performed such work covered by the terms of the Collective Agreement. That is all that is necessary to establish the applicability of the Collective Agreement provisions to the people who have already performed the work. To accept that, after work is performed, an employer can rely on an incorrect assignment of work to avoid collective agreement requirements (consider: wages, remittances, benefit payments?) is simply not tenable. It is not necessary, in the course of determining this matter, for the Board to determine whether the assignment of the work to members of Local 1089 by Chalmers was a correct assignment of work.

14The question before the Board is purely one of collective agreement interpretation and application. In the course of determining the grievance referral the Board will not make any determination with respect to the correct assignment of the work. There is no potential for the Board’s determination in this matter to conflict or overlap with the determination that the Board will have to make in Board File No. 0019-00-JD.

15Accordingly, the Board ruled that it would not adjourn the instant matter pending the outcome of Board File No. 0019-00-JD.

16Following a break in the proceedings, counsel for Local 1256 advised the Board that, in light of the Board’s ruling, his client was content not to participate in the hearing on the merits but reserved its right to intervene in any hearing that considered the issue of damages. Counsel for Local 1089 indicated that his client was of the view that Local 1256 would not be entitled to intervene in a hearing conducted with respect to the question of damages but was content to argue the issue if and when it arose.

17Pursuant to the Chair’s authorization pursuant to section 110(14) of the Act, the hearing of this matter will continue on July 19 and August 28, 2001 before Vice-Chair Gee alone. The responding party is hereby directed to deliver to counsel for the applicant and file with the Board a full response and a copy of all documents upon which it intends to rely no later than July 19, 2001. The hearing will commence on July 19 and August 28, 2001 at 9:30 a.m. at the Board’s offices located at 505 University Ave., 2nd Floor, Toronto, Ontario.

18Vice-Chair Gee alone is seized of this matter.

“D.L. Gee”

for the Board