Ontario Labour Relations Board
1453-01-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: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: A. Minsky and Robert Leone for the applicant; Richard Drmaj and Doug Chalmers for the responding party; Mike McCreary and Ron Carlton for the intervenor.
DECISION OF THE BOARD; December 21, 2001
- This is a referral of a grievance in the construction industry pursuant to section 133 of the Labour Relations Act. When the matter came on for hearing, the Board heard two preliminary issues:
Is the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the Carpenters) entitled to intervene in this matter?
Should the adjudication of the merits of the grievance await the outcome of a jurisdictional dispute involving the same parties.
The Labourers’ International Union of America, Local 1089 (the “Labourers”) submitted that the Carpenters are not entitled to intervene, and the hearing into this matter ought not to be postponed. Doug Chalmers Construction Limited (“Chalmers”) supported the Carpenters claim to intervene and suggested, along with the Carpenters that the hearing be deferred.
After hearing and considering the submissions of the parties, I ruled orally that this matter ought to be adjourned and that the Board would be in a better position to determine whether the Carpenters could intervene once the jurisdictional dispute consultation was finished. I also indicated to the parties that I would be directing Chalmers to further particularize its response. These are my reasons for that decision.
On August 7 and 8, 2001, all of the Labourers, including the steward, who had been working for Chalmers at the Imperial Oil Refinery in Sarnia were laid off. The stated reason for the lay off was lack of work. All of the Labourers were ultimately sent to other Chalmers clients within a few days.
To be clear, the Labourers do not accept that its members were laid off for lack of work. The Labourers allege that the members were laid off because they were exercising their rights under the Act to participate in the lawful activities of the trade union (section 72) and because steward Joe Leone was about to give testimony before the Board in the jurisdictional dispute. The Labourers allege that Chalmers’ actions are not only contrary to the Act, but contrary to the provisions of the Labourers’ Provincial ICI collective agreement. The Labourers’ allege that their removal from the Imperial site was an unlawful transfer; a breach of the discrimination provisions; an interference in the activities of its steward and a lay off of a steward without the advance notice the collective agreement requires. Put simply, the Labourers believe that their members have been disciplined for seeking to enforce both their statutory rights and contractual rights to work, in defiance of the efforts of Chalmers and the Carpenters to prevent them from doing so.
In their defence, Chalmers argues that Imperial decided not to proceed with a furnace repair, with the result that the scaffold Chalmers was to erect was not needed. Chalmers also asserts that the Carpenters advised that they were no longer willing to tolerate maintaining a group of “steady eddy” Labourers at Imperial Oil in the face of the Board’s determination that Labourers were only entitled to tending work to the extent that there was four hours work in a day. Chalmers submits that these two events resulted in its decision to transfer the Labourers working at Imperial Oil to other sites. Chalmers emphasizes that none of the four grievors is “on the street” or working for another employer, but at other Chalmers’ sites.
Counsel for the Carpenters confirmed that the Labourers employed by Chalmers had been laid off as a result of a demand by his client that Chalmers apply the Carpenters’ collective agreement. This is not a typical lay off, counsel argued, but a lay off whose genesis is a work jurisdiction dispute, the contours of which this panel of the Board is in the midst of hearing. That the Carpenters and their members are affected is revealed in the remedy sought; the Labourers ask that they be reinstated in their former positions which will inevitably lead to the lay off of Carpenters.
Counsel for the Labourers responded that the work assignment dispute the Board is hearing will not illuminate this grievance because the core of this conflict is an allegation that the Labourers were improperly treated as a result of their having acted upon their rights under the Act. The Labourers believe they are being punished and that it is disingenuous of the Carpenters and Chalmers to characterize the matter as a work assignment disagreement. That characterization, counsel submitted, ignores the substantive breach of the steward’s rights, and in particular the obligation to give notice of an intended lay off. If the matter is adjourned, counsel urged, the Labourers will not get natural justice and a timely remedy for serious employer misconduct.
The Board’s reasons for adjourning had much to do with the Board’s view of the management of its scarce resources; hearing time. These parties have been embroiled in a dispute around the tending of employees erecting scaffold in the Sarnia oil refinery industry for more than 9 years. The first jurisdictional dispute was filed on November 2, 1992 and the Board is in the process of hearing at least the fourth jurisdictional dispute. The intervening years have seen numerous grievances, and extensive efforts by Labour Relations Officers, the former Chair and at least one former Vice-Chair to resolve or at least manage the dispute, as it has played out at the Board. The success of those efforts is apparent because we are continuing to preside over precisely the same quarrel all these years later.
Indeed, the origins of the present jurisdictional dispute application was an agreement among the parties (with varying forms of enthusiasm) that an opportunity to marshal before the Board a wide range of scaffold situations and the circumstances surrounding the work would give the Board an opportunity to make a decision that would truly permit these parties to move forward, and leave this trail of litigation behind them. With that spirit, the Board agreed to engage in another work assignment dispute litigation, on the parties’ terms, which includes the calling of evidence, a feature not found in a typical work assignment consultation.
Consequently, the Board has an expectation that the decision in that work assignment proceeding will guide the parties to some degree into the future.
I appreciate that the grievance with respect to the layoffs at Imperial Oil is not wholly related to the work assignment dispute. In the grievance, the Labourers have raised important contractual issues, particularly around the lay off of the steward and the consequences of a failure to give proper notice. But Chalmers’ “defence” is that it made a legitimate business decision based on its understanding of which trade was entitled to the remaining work. Unless the Labourers were prepared to concede that Chalmers could be right (but that other inappropriate factors “tainted” that other wise bona fide decision), the validity of that work assignment is a live issue. And the Board is not anxious to commence more litigation on the work assignment issue. Consequently, it makes practical sense to adjourn this grievance until the decision in Board File 0019-00-JD is rendered.
In our view, this decision is consistent with the reasoning in Doug Chalmers Construction Limited (May 25, 2001, Board File No. 3782-00-G), although the result was the opposite. The Board decided not to adjourn that referral because it was not necessary to that grievance to determine if a proper work assignment had been made. Had I been convinced that the appropriateness of assigning the remaining work to the Carpenters at Imperial Oil was not an issue, I would not have adjourned the grievance.
This grievance is adjourned pending a final decision being rendered in Board File 0019-00-JD. When this matter is brought back on for hearing, the Board will determine the issue of the Carpenters’ right to intervene. In the meantime, Chalmers is directed to supply particulars with respect to its pleading at paragraphs 6 and 7 of its response. Those particulars should be provided by no later than January 31, 2002.
This panel is not seized, but if convenient, the Registrar is directed to schedule it before this panel.
“Mary Ellen Cummings”
for the Board