Clifford Restoration Limited v. Brick and Allied Craft Union of Canada

3502-99-JD Clifford Restoration Limited, Applicant v. Brick and Allied Craft Union of Canada, the Brick Employee Bargaining Agency (formerly Ontario Provincial Conference of International Union of Brick and Allied Craftsmen); Brick and Allied Craft Union of Canada, Local 5 (formerly International Union of Brick & Allied Craftsmen, Local 5); Labourers’ International Union of North America, Local 1059; Operative Plasterers Cement Masons and Restoration Steeplejacks International Association of the United States and Canada, Local 598; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; United Brotherhood of Carpenters and Joiners of America, Local 1946 and Tower Scaffold Services Inc., Responding Parties.

BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.

DECISION OF THE BOARD; May 28, 2001

1. The Board, in its decision in this matter of May 11, 2001 dealing with the request by counsel for Local 5, Local 1059 and the BACU for clarification of the Board’s March 21, 2001 noted that the applicant appeared to view the request of counsel for Local 5, Local 1059 and the BACU as more than a “mere correction or clarification” and that it wished to make further submissions in response to the submissions that had been filed by counsel for Local 5, Local 1059 and the BACU on April 3, May 2 and May 9, 2001. Counsel for the applicant, by letter dated May 18, 2001 stated:

In view of the submissions made on behalf of the applicant throughout these proceedings, we make no submissions in regard to the request set out in the letters of counsel for Local 5, Local 1059 and the BACU

2. The request made by counsel for Local 5, Local 1059 and the BACU is premised on the submission that the Board, in its decision of March 21, 2001 had inadvertently failed to deal with the tending work claimed by members of Local 1059 in connection with the stone masonry restoration work assigned to members of Local 5.

3. Counsel for Local 5, Local 1059 and the BACU, in a submission to the Board dated May 22, 2001 states:

As no party has filed an objection to Local 1059’s and BACU, Local 5’s request for a clarification and amendment to the Board’s March 21, 2001 decision, we ask that the Board amend the decision as requested in our letter of April 3^rd, 2001….

The April 3^rd letter set out the request in the following terms:

Accordingly, we request that the Board amend its decision and clarify it to reflect that the masonry work past practice in London was performed and the work in dispute is to be performed by members of the BACU Local 5 tended by members of Labourers’ Local 1059.

Counsel for Local 5, Local 1059 and the BACU pointed out that the written submissions filed on behalf of Local 1059 and Local 5 had sought a declaration that the work in dispute should have been assigned to members of the BACU with members of the Labourers tending. He also submitted that “…the argument of all parties was based on members of BACU Local 5 and Labourers’ Local 1059 performing the disputed work and all the work relied on in respect of past practice.” It is clear that the parties’ written submissions alluded to members of Local 1059 performing the tending work associated with the masonry restoration work assigned to members of Local 5.

4. At the hearing of this matter the Board did not receive any specific argument directed at work which should have been assigned to members of Local 1059. Nevertheless, neither the applicant nor the other responding parties have taken issue with the submissions and request made by counsel for Local 5, Local 1059 and the BACU. It is clear that the tending work associated with masonry restoration was an element of the work in dispute, although that work was not the subject of argument. The parties at the hearing focussed their attention on the dispute between only Local 5 and Local 598 because, according to counsel for Local 5, Local 1059 and the BACU, the parties accepted that the masonry tending work was subsumed within that dispute.

5. Under the circumstances and in particular due to the applicant’s decision to make no submissions with respect to the clarification request and in the absence of any submissions to the contrary from the other parties to this proceeding, the Board is satisfied that its March 21, 2000 decision can be clarified as requested by counsel for Local 5, Local 1059 and the BACU. Therefore, the Board amends paragraph 24 of its March 21, 2001 decision by adding after the name “Local 5” in the penultimate line and last line the following phrase: “tended by members of Labourers’ Local 1059”.

“Harry Freedman”

for the Board