Wood, Wire & Metal Lathers’ International Union et al. v. United Brotherhood of Carpenters and Joiners of America et al., [1973] SCR 756

Supreme Court of Canada

Wire & Metal Lathers’ Int. Union et al. v. Wood, [1973] S.C.R. 756

Date: 1973-05-07

Wood, Wire & Metal Lathers’ International Union, Wood, Wire & Metal Lathers’ International Union, Local 207, and Tom Pennington, suing on his own behalf and on behalf of all other members of the said Local 207 (Plaintiffs) Appellants;

and

United Brotherhood of Carpenters and Joiners of America and George Bengough, sued on his own behalf and on behalf of all other members of the United Brotherhood of Carpenters and Joiners of America, and United Brotherhood of Carpenters and Joiners of America, Local 452, sued on its own behalf and on behalf of all other local unions that are members of the British Columbia Council of Carpenters, and Construction Labour Relations Association of British Columbia (Defendants) Respondents.

1973: March 19, 20; 1973: May 7.

Present: Abbott, Martland, Ritchie, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Labour law—Trade unions—Agreement to submit jurisdictional disputes to national joint board—Status quo agreement—Alleged breaches—No recourse to ordinary courts until remedies before internal tribunal exhausted—Action premature.

The Building and Construction Trades Department AFL-CIO and the Participating Contractors Employers’ Associations entered into an agreement entitled “Plan for Settling Jurisdictional Disputes Nationally and Locally” (referred to as the Green Book). The Green Book provided for the establishment of a National Joint Board for the settlement of jurisdictional disputes. Under authority of the Green Book there was provided a document entitled “Procedural Rules and Regulations of the National Joint Board for its Settlement of Jurisdictional Disputes and Appeal Boards Procedures” (referred to as the Blue Book).

The appellant and respondent unions, which with other unions comprised the Building and Construction Trades Department AFL-CIO, availed themselves

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in full of the right given in the Green Book to submit jurisdictional disputes to the Joint Board. The Joint Board found that it was completely clogged by a large volume of such disputes. Therefore, the presidents of the two industrial unions entered into a status quo agreement for the resolution of disputes over the matters of installation of ceiling systems and the metal studs to receive dry wall.

A few years later, the respondent local entered into a collective agreement with the Construction Labour Relations Association of British Columbia. Under cl. 14.01 of that agreement, all work in connection with the installation, erection and/or application of all materials and component parts of walls and partitions was recognized as being within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America.

The appellants contended that the execution of cl. 14.01 in the collective agreement was in breach of the status quo agreement and also of an article of the Green Book. An action brought by the appellants in which they claimed damages and injunctive relief was dismissed at trial and an appeal was dismissed by the Court of Appeal. The appellants appealed further to this Court.

Held (Laskin J. dissenting): The appeal should be dismissed.

Per Abbott, Martland, Ritchie and Spence JJ.: The appellants were bound by the provisions of the contracts between them contained in the Green Book, the Blue Book and the constitution of the Building and Construction Trades Department AFL-CIO to first exhaust their remedies before the internal tribunal and were restrained from recourse to the ordinary courts until they had done so. The action of the appellants was premature.

Per Laskin J., dissenting: The dispute on ceiling systems had been resolved and in the result metal studs alone constituted the subject-matter of the status quo agreement. The said agreement, which the respondent local conceded was still in force and was binding upon it, expressly excluded recourse to the National Joint Board in respect of contractor’s assignments of metal stud work pending a resolution of differences between the two unions by their respective committees. There were, therefore, no internal procedures for settlement that had to be exhausted before recourse could be had to the courts.

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[White v. Kuzych, [1951] A.C. 585, followed; Orchard v. Tunney, [1957] S.C.R. 436; Bimson v. Johnston, [1957] O.R. 519, affirmed 12 D.L.R. (2d) 379; Gee v. Freeman (1958), 26 W.W.R. 546, distinguished]

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal from a judgment of Macdonald J. Appeal dismissed, Laskin J. dissenting.

John Laxton, for the plaintiffs, appellants.

H.E. Hutcheon, Q.C., and R.R. Holmes, for the defendants, respondents.

The judgment of Abbott, Martland, Ritchie and Spence JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for British Columbia pronounced on January 10, 1972. By that judgment, the Court of Appeal dismissed an appeal from the judgment of Macdonald J. pronounced on July 9, 1971 (the formal order was dated July 12, 1971). By the latter judgment, Macdonald J. had dismissed the action of the plaintiffs.

On August 15, 1970, the respondent, Carpenters and Joiners of America, Local 452, entered into a collective agreement with the Construction Labour Relations Association of British Columbia. Clause 14.01 of that agreement reads as follows:

CLAUSE 14—RECOGNITION OF JURISDICTION

14.01 The following specific area of work is recognized as being within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America.

All work in connection with the installation, erection and/or application of all materials and component parts of walls and partitions regardless of their material composition or method or manner of their

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installation attachment or connection, including but not limited to the following items: all floor and ceiling runners, studs, stiffeners, cross bracings, fireblocking resilient channels, furring channels, doors and windows including frames, casing, moulding, base accessory trim items, gypsum dry wall materials, laminated gypsum systems backing board, finish board, fire-proofing of beams and columns, fire-proofing of chase, sound and thermal insulation materials, fixture attachments including all layout work, preparation of all openings for lighting, air vents or other purposes and all other necessary or related work in connection therewith.

When the appeal came to be heard in this Court, there was submitted to us evidence that there was another agreement now in effect said to have been executed on August 3, 1972. These agreements have clauses 14.01 in exactly the same terms. Despite the fact that the original collective agreement has long since expired and in view of the fact that no appeal could reach this Court before the expiry of the usual collective agreement this Court has considered the appeal adopting the principle outlined by Cartwright J., as he then was, in International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange[2], at pp. 636-7.

It is the execution of an agreement containing this clause 14.01 which the plaintiffs rely upon as giving them a cause of action which they assert in this action.

The appellants and the respondents United Brotherhood of Carpenters and Joiners of America with other unions comprise the Building and Construction Trades Department of the AFL-CIO. The department and the participating contractors employers’ association have entered into an elaborate agreement entitled “Plan for Settling Jurisdictional Disputes Nationally and Locally”. This plan was introduced at the trial of the action as an exhibit and has been referred to throughout as being the “Green Book”. The

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kernel of the plan is set out in art. II, s. 1, as follows:

Sec. 1. Joint Board.—There shall be established a National Joint Board for the Settlement of Jurisdictional Disputes in the building and construction industry.

Section 4 of the said art. II provides:

Sec. 4. It shall be the duty of the Joint Board to consider and decide cases of jurisdictional disputes in the building and construction industry, which disputes are referred to it by any of the International Unions involved in the dispute, or an employer directly affected by the dispute on the work in which he is engaged or by a participating organization representing such employer.

Article III, s. 9 of the Green Book provides:

Sec. 9. It shall be a violation of this agreement for any local union, international union, employer or employers’ association to enter into any agreement, resolution or stipulation that attempts to establish any jurisdiction which deviates from the spirit and intent of the Agreement and Procedural Rules of the Joint Board Plan.

When the Joint Board receives a protest of an alleged violation from an international union, an employer or an employers’ association, it shall proceed to make a decision and to determine the action which should be taken to correct the violation consistent with the applicable legal obligations of the parties.

Failure by the Parties to accede to the decision of the Joint Board under this paragraph shall be treated in the same manner as noncompliance with a job decision.

It was provided in art. II, s. 1 of the Green Book that the chairman and Joint Board shall have the authority to establish such procedural regulations and effective administration of this agreement with the approval of the Joint Negotiating Committee provided such regulations and practices are consistent with the express terms of this agreement. Acting on that authority, there was provided a document entitled “Procedural Rules and Regulations of the National Joint Board for its Settlement of Jurisdictional Disputes and Appeal Boards Procedures”. A copy of this document was intro-

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duced at trial as ex. 2 and has been designated throughout as the “Blue Book”. I quote a portion of those procedural rules:

CONTRACTOR’S RESPONSIBILITY

1. Contractors subletting work should stipulate that subcontractors be bound by agreement establishing National Joint Board and its procedural rules in assignment of work.

2. The contractor who has the responsibility for the performance and installation shall make a specific assignment of work. For instance, if contractor A subcontracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. If contractor B in turn shall subcontract certain work to contractor C, then contractor C shall have the responsibility for making the specific assignment for the work included in his contract. It is a violation of the plan for the contractor to hold up disputed work or shut down a project on account of a jurisdictional dispute.

3. The assignment to be made by the contractor shall be according to the following basis:

(a) Where a decision of record applies to the disputed work, or where an agreement of record between the disputing trades applies to the disputed work, the contractor shall assign the work in accordance with such agreement or decision of record. Agreements and decisions of record are compiled in the “Green Book” published by the Building and Construction Trades Department, AFL-CIO, (“Agreements and Decisions Rendered Affecting the Building Industry”). Where a national agreement between the disputing trades applies that has been filed with the Joint Board and attested by the Chairman, even though not an agreement of record, the contractor shall assign the work in accordance with such agreement. In negotiating such national agreements between International Unions, consultation with the appropriate management groups on the making of agreements between International Unions is desirable and should be carried on.

Decisions of record are applicable to all trades. Agreements of record are applicable only to the parties signatory to such agreements.

(b) Where no decision or agreement under (a) applies, the contractor shall assign the disputed work

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in accordance with the prevailing practice in the locality. The locality for the purpose of determining the prevailing practice shall be defined ordinarily to mean the geographical jurisdiction of the local Building and Construction Trades Council in which the project is located.

(c) If a dispute has arisen prior to the specific assignment of work where no decision or agreement under (a) applies, or where there is no predominant practice in the locality, the contractor shall nonetheless make a specific assignment according to his best judgment after consulting the representatives of the contesting trades and considering any arguments or facts the trades may wish to present regarding the applicable decisions or agreements of record or practice in the locality. The contractor should also consult any local association of contractors in the locality regarding the established practice.

4. When a contractor has made an assignment of work, he shall continue the assignment without alteration unless otherwise directed by the Joint Board or by agreement between the International Unions involved.

(a) (Not material)

(b) Starting of work by a trade without a specific assignment by an authorized representative of the responsible contractor shall not be considered an original assignment to that trade, provided that the responsible contractor or his authorized representative, promptly, and in any event within eight working hours following the start of the work, takes positive steps to stop further unauthorized performance of the work by that trade.

5. In the event that there is any stoppage of work, or threat of a stoppage, or cessation of operations, arising out of jurisdictional dispute following an assignment of work, the contractor is to notify immediately the Chairman of the Joint Board, 815 16th Street, N.W., Washington, D.C. 20006.

(There follows provision as to the content of the notice.)

This is followed by a section entitled “Union’s Responsibility” and I quote paras. 1 and 2 of the latter:

1. The agreement provides (Article V, Section 1) that “Pending a decision by the Board or such settlements as may be arrived at through the office of the Chair-

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man of the Joint Board there shall be no stoppage of work arising out of any jurisdictional dispute.

2. When a contractor has made a specific work assignment, all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established by the Joint Board. Any union which protests that a contractor has failed to assign work in accordance with the procedures specified above, shall remain at work and process the complaint through its international office. The Joint Board is prohibited from taking action on protests directly from Local Unions or Building and Construction Trades Councils.

It would appear that both appellant union and the respondent union availed themselves in full of the right given in the Green Book to submit jurisdictional disputes to the Joint Board. The Joint Board found that it was completely clogged by a large volume of such disputes. Therefore, in May of 1965 the presidents of the two industrial unions entered into what has been termed throughout the litigation as the “status quo agreement” of the dispute over the matters of installation of ceiling systems and the metal studs to receive dry wall. This status quo agreement was created in a very informal manner. The president of each of the two unions forwarded to the National Joint Board his telegram. The president of the appellant union, Mr. Sal Maso, forwarded a telegram as follows:

SETTLEMENT OF JURISDICTIONAL DISPUTES 815 SIXTEENTH STREET NW WASHINGTON DC

AS PER TELEPHONE DISCUSSIONS TODAY WITH PRESIDENT HUTCHESON OF CARPENTERS WE HAVE AGREED BETWEEN OURSELVES TO APPOINT COMMITTEES OF THREE FROM EACH ORGANIZATION TO TRY AND RESOLVE OUR DISPUTES ON CEILINGS AND NAILABLE AND SCREWABLE METAL STUDS TO RECEIVE DRY WALL WE HAVE ALSO AGREED THAT OUR POSITIONS ON BOTH ITEMS IS TO REMAIN STATUS QUO PENDING OUTCOME OF DISCUSSIONS PRESIDENT

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HUTCHESON IS ALSO TO WIRE YOU WOULD APPRECIATE YOUR CONFIRMATION OF SAME COPY OF THIS WIRE IS BEING SENT TO PRESIDENT HUTCHESON

“MASO”

And the president of the respondent union forwarded his telegram to the same effect which reads as follows:

WESTERN UNION TELEGRAM

May 12, 1965

National Joint Board
815 Sixteenth Street NW
Washington DC
ATTN WM Cour

As per telephone discussion today with President Maso of the Lathers International, we have agreed between ourselves to appoint committee of three from each organization to try and resolve our disputes on ceilings and metal studs. We have also agreed that work on both items is to remain status quo pending outcome of discussions or a decision by a Review Panel. President Maso is also to wire you and I would appreciate your confirmation of same. Copy of this wire being sent to President Maso.

MAH:em                                                                                M.A. HUTCHESON
                                                                                                GENERAL PRESIDENT

The sparseness of these two telegrams has been considerably improved by a letter written by William J. Cour, the Chairman of the National Joint Board, and addressed to both the said presidents which letter, dated June 10, 1965, to one, and June 11, 1965, to the other, reads as follows:

June 10, 1965                                          “Jun 11 1965”

Mr. Maurice A. Hutcheson,
General President United Brotherhood of Carpenters and Joiners
101 Constitution Avenue, N.W.
Washington, D.C. 20001

Dear Maurice:

This is with reference to the meeting held with you and President Maso in the Joint Board office on June 9, 1965, during which we discussed

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certain jurisdictional matters between your respective international unions.

It is my understanding that as a result of this meeting it is clearly agreed that the status quo statement referred to in your telegram of May 12, 1965 is applicable to all of your affiliated local unions, including those in areas covered by recognized local boards. My understanding of your status quo statement is that work will proceed in accordance with the contractor’s assignment and that neither your international union or the Wood, Wire and Metal Lathers International Union will process cases involving metal studs, including floor and ceiling runners, to receive drywall or cases involving ceiling systems before the National Joint Board, local boards, or the National Labour Relations Board while your respective committees are considering these jurisdictional differences and attempting to resolve them.

I sincerely hope that your respective committees will be successful in this effort. If I can be of assistance, please let me know.

Very truly yours,

WILLIAM J COUR

Chairman

WJC/lp

c.c. Mr. Sal Maso—Lathers

Appeals Board

Tysoe J.A., in giving reasons for the Court of Appeal for British Columbia, noted that the parties agreed that the interpretation placed on the so-called status quo agreement by Mr. William J. Cour in that letter was a correct interpretation of the said agreement.

It is the appellant’s submission that the execution of cl. 14.01 in the collective agreement which I have quoted earlier is in breach of the status quo agreement in that it does not permit contractors to proceed in accordance with a contractor’s assignment, i.e., the contractor’s responsibility in the procedural rules which I have quoted above, and that therefore not only the status quo agreement but art. III, s. 9, of the Green Book which I have also quoted has been breached.

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The appellants issued a writ in which they claimed damages for breach of contract, damages for coercion and intimidation of the contractors for the purpose of persuading and attempting to persuade the contractors and subcontractors not to assign work to the plaintiffs, and an injunction restraining the defendants and each of them from coercing and intimidating contractors by persuading and attempting to persuade contractors and subcontractors not to assign work to the plaintiffs. The writ was not served on United Brotherhood of Carpenters and Joiners of America or on George Bengough and the damages were claimed only against the United Brotherhood of Carpenters and Joiners of America, Local 452.

Macdonald J., after trial, dismissed the action, concluding with the statement:

In my opinion the documents do not comprise or include a contract on the part of the defendant Unions not to enter into an agreement that attempts to establish a jurisdiction deviating from the spirit and intent of the agreement and procedural rules. The contract in definite terms provides for something else, i.e. that such conduct shall be a violation of the Green Book agreement, rendering the union responsible liable to prescribed consequences. The Status Quo Agreement when added to and read with the Green and Blue Books does nothing to further a finding that there is in the contract the negative covenant which is essential to the plaintiffs’ case. What it does is make the subcontractor’s assignment even more important because the parties agree that it will stand without appeal to the Joint Board.

In the Court of Appeal, Davey C.J.B.C. would have allowed the appeal in part and given judgment in favour of the plaintiffs for damages in the sum of $1,000 that sum having been agreed upon between parties prior to the trial as the proper quantum of damages. The Chief Justice would have dismissed the claim for the injunction.

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In giving reasons for the majority in the Court of Appeal, Tysoe J.A. said:

The first question that must be decided is whether, as is submitted by the respondent, this action in the courts is premature because the appellants have made no attempt to exhaust internal remedies within the structure of the Building and Construction Trades Department AFL-CIO which are available to them. It is admitted that no such attempt has been made. The appellants contend that there is no obligation on them to first seek those remedies. So, the appellants submit, their action is maintainable.

Concluding a detailed and very carefully reasoned judgment, Tysoe J.A. said:

I am also of the opinion that the appellants have bound themselves and agreed that such dispute shall be settled and adjusted according to the Plan established by such Department and set out in the Green Book. Further, that they will not resort to Court proceedings over the said jurisdictional dispute without first exhausting internal remedies available to them under the said Plan. I am further of the opinion that a right of protest to the National Joint Board is available to the appellants and that Board has jurisdiction to deal with that protest and to prescribe the consequences that are to follow if the protest is upheld within, of course, the powers given to the Board under the provisions of the Green Book and the Blue Book. It follows that, as the appellants have made no attempt to exercise their said right of protest, this action has been brought prematurely and the Courts cannot entertain it.

I would dismiss the appeal.

MacLean J.A. concurred that the appeal should be dismissed for the reasons given by Tysoe J.A.

I turn first to the consideration of the interpretation and application of the status quo agreement and for that purpose I use the letter of Mr. Cour, the chairman of the Joint Board, which was addressed to the presidents of both the appellant union and the respondent union and which was dated June 10 and 11, 1965, as that letter has been agreed upon between the parties as being a proper interpretation of the status quo agreement and as constituting a con-

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tract between the appellant and the respondent union. I repeat a portion thereof:

My understanding of your status quo statement is that work will proceed in accordance with the contractor’s assignment and that neither [here naming both Unions] will process cases involving metal studs including floor and ceiling runners to receive dry wall or cases involving ceiling systems before the National Joint Board, local boards, or the National Labour Relations Board while your respective committees are considering these jurisdictional differences and attempting to resolve them.

The dispute was resolved in so far as ceilings are concerned but no decision so far as metal studs and dry walls are concerned has yet been arrived at by this committee and the parties agree that whatever the status quo agreement provides is still in effect. The circumstances under which this status quo agreement was made must be considered in the interpretation of it. As I have pointed out, the National Joint Board had been flooded, and indeed clogged, by a great mass of job disputes, that is, dispute by one union of the granting of work under a contract to another union. I have reached the firm conclusion that such situation alone was intended to be dealt with in the status quo agreement so that this series of protests as to the awarding of work under a contract to one union or to the other had to be held in abeyance until a general policy could be evolved. I point out that this is not the question which is in dispute between the appellant and respondent unions but rather whether the respondents have breached the provisions of the main agreement contained in the Blue Book and the Green Book and also the constitution of the Building and Construction Trades Department AFL-CIO. The latter document was produced at trial as ex. 38 and has been referred to throughout the litigation as the “Yellow Book”. For my purpose, it is necessary to quote only portions of art. II, art. X, and art. XI, as follows:

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ARTICLE II

Objects and Principles

The objects and principles of this body are:

6. To secure the adjustment of trade and jurisdictional disputes in the building and construction trades industry along practical lines as they may arise from time to time; and such decisions to be final and binding on all affiliated National and International Unions and their affiliated Local Unions.

8. To promote industrial peace and develop a more harmonious feeling between employers and employees.

12. To protect National or International Unions affiliated with the Department in their established trade jurisdiction in the building and construction trades industry as historically granted and conferred upon them by the American Federation of Labor and as traditionally exercised by them.

ARTICLE X

Jurisdictional Disputes

All jurisdictional disputes between or among affiliated National and International Unions and their affiliated Local Unions and employers shall be settled and adjusted according to the present plan established by the Building and Construction Trades Department, or any other plan or method of procedure adopted in the future by the Department for the settlement of jurisdictional disputes. Said present plan or any other plan adopted in the future shall be recognized as final and binding upon the Department and upon all affiliated National or International Unions and their affiliated Local Unions.

ARTICLE XI

Exhaustion of Remedies and Appeals

Section 1. No affiliated National or International Union or local affiliate thereof, Local or State Building and Construction Trades Council shall, as to any matter within the jurisdiction of the Department, resort to court proceedings against the Department or any affiliated National or International Union or any local affiliate thereof, without first exhausting internal remedies within the structure of this Department. Affiliated National and International Unions, and Local and State Building and Construction Trades Councils shall adhere to the following procedure:

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A. Appeals from any action of any State or Local Building and Construction Trades Council may be made to the President of the Department.

B. Appeals from any decision of the President of the Department may be made within thirty (30) days thereof to the Executive Council.

C. Appeals from any decision of the Executive Council may be made to the next Convention and must be filed with the Department not later than sixty (60) days after the decision of the Executive Council.

It will be seen that one of the objects and principles set out in art. II, s. 6, is to secure the adjustment of trade and jurisdictional disputes in the building and construction area along practical lines … and that art. X requires all jurisdictional disputes between or among affiliated national and international unions and their affiliated local unions and employers to be settled in accordance with the present plan established by the building and construction department or any other plan or method of procedure adopted in the future. I agree with Tysoe J.A. that the “present plan” was that exhibited in the Green Book and the “future plan” included that exhibited in the Blue Book. Article XI contains a complete code of procedural steps and provides a clear covenant not to resort to court proceedings without first exhausting internal remedies within the structure of the department, that is, the remedies to which I have referred. The appellants made no attempt to proceed in accordance with the provisions of the constitution, the Blue Book or the Green Book but proceeded in an action in the ordinary courts in British Columbia only seeking to use the Green Book and the Blue Book as being the basis for their cause of action.

The Judicial Committee in White v. Kuzych[3], considered an appeal from the Court of Appeal of British Columbia as to trade unions. The respondent who had been a member of the

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appellant trade union had been found guilty by a committee thereof of certain charges and then at the general business meeting of the union had been expelled therefrom. The respondent, without first appealing to the federation from the findings in the report and the resolution of expulsion instituted an action for a declaration that he had not been validly expelled from the membership of the union. The Judicial Committee held that the respondent was required to take the various steps provided for in the constitution of the union for appealing the decision of the committee and of the general meeting and that, having failed to do so, his action was premature. The appeal was therefore allowed and the action dismissed. As did Tysoe J.A., I quote the penultimate paragraph of the judgment:

Their Lordships are therefore constrained to hold that the conclusion reached by the general committee was subject to appeal. And they must respectfully repudiate both the correctness and the revelance of the view that it would have been useless for the respondent to appeal because the federation would be sure to decide against him. They see no reason why the federation, if called on to deal with the appeal, should be assumed to be incapable of giving its honest attention to a complaint of unfairness or of undue seventy, and of endeavouring to arrive at the right final decision. At any rate, this is the appeal which the respondent was bound by his contract to pursue before he could issue his writ. He has not done so, and on this ground their Lordships will humbly advise His Majesty that the appeal must be allowed.

I hold the view that the decision in White v. Kuzych and the many other decisions to the same effect apply with equal force to the appellants and respondents as between one another. I agree with Tysoe J.A. that the unions might lawfully bind themselves to an agreement that in the case of a jurisdictional dispute arising between them the matter should be referred to the National Joint Board and that they will not resort to the courts.

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The appellants submit that they are not required to exhaust internal remedies before taking recourse to the ordinary courts on the ground that the remedy obtained in the domestic tribunals could be no more than a declaration in favour of their contention, and that the International Joint Board could not award either damages or an injunction. I agree with the short answer made to this contention by Tysoe J.A. that even if the sanctions are ineffective they are the sanctions to which the two unions agreed and they are bound to carry out their agreement. I realize there are a series of cases in which the ordinary courts have received and dealt with litigation by a party to such an agreement as the one here in question when that party has failed to first carry out all his procedural steps required by the provisions of such agreement. Perhaps the most important of those for the present purposes is Orchard v. Tunney[4]. There Williams C.J.Q.B. in Manitoba had maintained the respondent’s action for a declaration that he was still a member of a local union despite his suspension therefrom under terms which amounted to an expulsion. The Court of Appeal of Manitoba in its judgment reported in (1955), 15 W.W.R. 49, dismissed the appeal and Adamson C.J.M. disposed of the point as to failure to exhaust internal remedies by examining the provisions for such internal remedies and the conduct of the matter by the union and said, at p. 59:

I hold that the provisions for appeal were unreasonable, impracticable and ineffective. I find, too, that the general executive of the union did not make reasonable provision for the hearing and disposition of the appeal. The plaintiff had as a matter of fact no means of redress except by action in the courts.

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In this Court, the question of the necessity of exhausting internal remedies was dealt with somewhat differently. Rand J. at p. 439 said:

The effect of s. 45 is that the finding of the board remains conditional until by concurrence it becomes accomplished. Under art. XVIII, s. 20, of the international rules an appeal may be taken from the “decision of the local executive board” to the general executive board. In the absence of confirmation there was no decision and the condition of taking or enabling an appeal did not come into existence.

The judgment of the Court of Appeal of Manitoba was varied only to remove the award against the appellants in their representative capacity but otherwise was affirmed.

In Bimson v. Johnston[5], Thompson J. awarded judgment in favour of the plaintiff in a trade union dispute despite the fact that he had not proceeded in accordance with the provisions of the constitution to exhaust internal remedies holding that the suspension of the plaintiff was contrary to the principle of natural justice and was ultra vires and, therefore, it was no defence to say that the plaintiff had failed to exhaust his remedies under the rules of the association. Thompson J. added at p. 541:

Whatever may be the result of the earlier cases in the light of the ultimate decision in Tunney’s case, it is now established that in cases where the decision of a forum of original jurisdiction is a nullity or is void as having been made without jurisdiction or is an ultra vires act, so as not to constitute an effective decision at all, generally speaking, conditions as to the exhaustion of rights and remedies within the domestic body are ineffectual to prevent resort to the Courts. A fortiori is such the case where the provisions for internal remedy are merely enabling.

Applying this reasoning to the case at bar, the defence of prematurity must fail.

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The judgment of the Court of Appeal is reported in (1958) 12 D.L.R. (2d) 379. Porter C.J.O. in his reasons expressed doubt that the actions of the officers of the defendant union were mala fides but concluded:

Since they did act beyond their powers, even though they may have acted bona fide, the plaintiff is entitled to judgment.

In Gee v. Freeman et al.[6], Wilson J. in the Supreme Court of British Columbia refused to dismiss an action by a plaintiff, a member of the union who had been expelled, on the ground that he had not exhausted his remedies for the reason that the provisions as to appeal in the constitution of the union were impracticable and ineffective. I agree with Tysoe J.A. that none of the cases which have been cited or others which came to the same conclusion are applicable in the present situation. There has been no suggestion that the right of protest to the National Joint Board is unreasonable or impracticable and there is no allegation that the domestic tribunal has acted unconstitutionally for that tribunal, not having been called upon, has not acted at all. I therefore am of the opinion that the appellants were bound by the provisions of the contracts between them contained in the Green Book, the Blue Book and the Yellow Book to first exhaust their remedies before the internal tribunal and were restrained from recourse to the ordinary courts until they had done so. I am therefore of the opinion that the action of the appellants is premature.

I would dismiss the appeal and affirm the judgment of the Court of Appeal of British Columbia. The respondents are entitled to their costs throughout.

LASKIN J. (dissenting)—The issues in this appeal, as argued before this Court, are between the appellant, Local 207 of the Wood, Wire & Metal Lathers’ International Union and the respondent, Local 452 of the United Brotherhood of Carpenters and Joiners of America. The

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style of cause in the litigation, which was begun on July 31, 1970, shows, inter alia, the respective international unions as separate parties and as well the Construction Labour Relations Association of British Columbia, an organization of construction contractors. The latter was first dismissed from the proceedings and later rejoined as a defendant, but was excused from participation on its undertaking to abide by any judgment that might pertain to it as a party to a collective agreement of August 14, 1970, with the British Columbia Provincial Council of Carpenters, of which Local 452 is a member. It is conceded that Local 452 was bound by this collective agreement as a party thereto.

Despite the ramifications of the dispute between the two competing locals, as reflected in interlocutory proceedings for an injunction and for a stay of the action (which was lifted on an appeal) and as canvassed in the trial and appeal on the merits, there are, in my opinion, three matters only that need be considered. They are, first, whether Local 452 was in breach of a so-called status quo agreement of June 10, 1965, which both locals agree is still on foot; second, whether, if there was a breach, resort to the Courts to remedy it was premature because of an alleged obligation to have initial recourse to domestic procedures; and, third, if such recourse was not required, whether, in addition to the agreed damages in the nominal sum of $1,000, Local 207 was entitled to an injunction to restrain the alleged breach and to restrain any continuing or future breach. I regard this third point as the only doubtful matter for the appellant Local 207 because of the submissions of the respondent Local 452 as to certain disentitling behaviour of Local 207 and its parent.

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The status quo agreement has behind it a long history of competition between the two international unions and their various locals as to their respective spheres of work. It has been detailed in the judgments below and I need not repeat it. Suffice it to say that the two international unions along with other craft unions in the building and construction industry, all being affiliated to the A.F. of L.-C.I.O. in the United States, established a regime, to which various contractor employers’ associations subscribed, under which jurisdictional disputes, that is disputes between or among those unions as to the work in the industry which they claimed for their respective members, were to be submitted to a National Joint Board for decision, with a right of appeal to an Appeals Board, which was given a discretion to determine what cases it would accept for review. Under the regime, agreements on spheres of jurisdiction were encouraged, and these became matters of record with a governing effect according to their terms. The main task of the National Joint Board, so far as the impact of the regime on the present case is concerned, was to render job decisions. Article III, s. 1(b) of the Green Book (as it has been called throughout this litigation), which embodies the jurisdictional disputes settlement plan (along with the Blue Book specifying the procedural rules), reads as follows:

If the Joint Board finds that the dispute is not covered by a decision or agreement of record, it shall render a job decision, in which the Board should consider the established trade practice and prevailing practice in the locality, and such job decision shall be effective on the particular job only on which the dispute occurred.

In addition to local job disputes, the regime embraced disputes calling for a national decision which could ultimately go to a hearings panel. No appeal lay from the decision of a

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hearings panel. A repetitive dispute brought before the National Joint Board could also become a matter of a national decision by a hearings panel.

Employers and employers’ associations were entitled to invoke the jurisdiction of the National Joint Board. The settlement plan provided in art. VI, s. 1 that pending a decision on a jurisdictional dispute or the settlement thereof there was to be no stoppage of work. This section also stipulated that “contractors and subcontractors shall make work assignments in accordance with the Contractor’s Responsibility as set forth in the [Blue Book]”. The prescriptions in the Blue Book as to Contractor’s Responsibility are of considerable importance in the present case and I reproduce them in full in their relevant parts:

1. Contractors subletting work should stipulate that subcontractors be bound by agreement establishing National Joint Board and its procedural rules in assignment of work.

2. The contractor who has the responsibility for the performance and installation shall make a specific assignment of the work. For instance, if contractor A subcontracts certain work to contractor B, then contractor B shall have the responsibility for making the specific assignment for the work included in his contract. If contractor B in turn shall subcontract certain work to contractor C, then contractor C shall have the responsibility for making the specific assignment for the work included in his contract. It is a violation of the plan for the contractor to hold up disputed work or shut down a project on account of a jurisdictional dispute.

3. The assignment to be made by the contractor shall be according to the following basis:

(a) Where a decision of record applies to the disputed work, or where an agreement of record between the disputing trades applies to the disputed work, the contractor shall assign the work in accordance with such agreement or decision of record. …

(b) Where no decision or agreement under (a) applies, the contractor shall assign the disputed work in accordance with the prevailing practice in the locality. The locality for the purpose of deter-

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mining the prevailing practice shall be defined ordinarily to mean the geographical jurisdiction of the local Building and Construction Trades Council in which the project is located.

(c) If a dispute has arisen prior to the specific assignment of work where no decision or agreement under (a) applies, or where there is no predominant practice in the locality, the contractor shall nonetheless make a specific assignment according to his best judgment after consulting the representatives of the contesting trades and considering any arguments or facts the trades may wish to present regarding the applicable decisions or agreements of record or practice in the locality. The contractor should also consult any local association of contractors in the locality regarding the established practice.

4. When a contractor has made an assignment of work, he shall continue the assignment without alteration unless otherwise directed by the Joint Board or by agreement between the International Unions involved.

The Blue Book also delineates a union’s responsibility, which is in the following terms:

2. When a contractor has made a specific work assignment, all unions shall remain at work and process any complaint over a jurisdictional dispute in accordance with the procedures herein established by the Joint Board. Any union which protests that a contractor has failed to assign work in accordance with the procedures specified above, shall remain at work and process the complaint through its international office. The Joint Board is prohibited from taking action on protests directly from Local Unions or Building and Construction Trades Councils.

One further clause of the jurisdictional disputes settlement plan must be brought into account for the purposes of this case. Section 9 of art. III of the Green Book is in these words:

It shall be a violation of this agreement for any local union, international union, employer or employers’ association to enter into any agreement, resolution or stipulation that attempts to establish any jurisdiction which deviates from the spirit and intent of

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the Agreement and Procedural Rules of the Joint Board Plan.

When the Joint Board receives a protest of an alleged violation from an international union, an employer or an employers’ association, it shall proceed to make a decision and to determine the action which should be taken to correct the violation consistent with the applicable legal obligations of the parties….

I note that this clause was introduced into the Green Book in 1970, long after the status quo agreement was concluded.

The status quo agreement was the product of two telegrams of similar import sent by the respective general presidents of the two international unions to the chairman of the National Joint Board following a meeting in the Joint Board’s office to discuss certain jurisdictional matters between the two unions. The two telegrams refer to an agreement to appoint committees of three from each organization which would try to resolve disputes on ceilings and metal studs. In addition, it was agreed that the position on both items was to remain status quo pending outcome of discussions between the committees. Local 207 and Local 452 are in accord that the letter of the chairman of the Joint Board, dated June 10, 1965, addressed to the Lathers’ general president, correctly interprets the agreement arrived at by the two general presidents on behalf of their unions, and that the locals as well as the internationals are bound thereby as parties. The material part of this letter is in the following terms:

It is my understanding that as a result of this meeting it is clearly agreed that the status quo statement referred to in your telegram of May 13, 1965 is applicable to all of your affiliated local unions, including those in areas covered by recognized local boards. My understanding of your status quo statement is that work will proceed in accordance with the contractor’s assignment and that neither your international union nor the United Brotherhood of Carpenters and Joiners will process cases involving metal studs, including floor and ceiling runners, to receive drywall or cases involving ceiling systems before the

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National Joint Board, local boards, or the National Labor Relations Board while your respective committees are considering these jurisdictional differences and attempting to resolve them.

It appears that the dispute between the respective international unions and their locals on ceiling systems was resolved, apparently by a decision early in 1968 of a hearings panel, following invocation of art. III, s. 5 of the Green Book (dealing with repetitive disputes) at or about the time that the status quo agreement was concluded. Neither party to the proceedings herein is assisted or prejudiced by this settlement, but, in the result, metal studs alone constitute the subject-matter of the status quo agreement.

On or about August 15, 1970, the British Columbia Provincial Council of Carpenters, to which Local 452 is attached, executed a collective agreement with the Construction Labour Relations Association of British Columbia, effective from May 1, 1970, to March 31, 1972. It was because of the impending execution of this agreement, which binds Local 452 as a party thereto, that Local 207 instituted proceedings on July 31, 1970, in which it sought injunctive relief against the impending agreement and later against its enforcement. I shall consider in due course the contention of counsel for Local 452 that because the collective agreement expired on March 31, 1972 (after the judgment of the British Columbia Court of Appeal but before the hearing in this Court) injunctive relief is no longer open, although that agreement was replaced by another which has the same material terms.

The basis of the proceedings taken by Local 207 was that the collective agreement above mentioned constituted a breach by Local 452 of the status quo agreement. The breach was

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alleged to lie in arts. 3.02 and 14.01 of the collective agreement, which read as follows:

3.02 The Employer signatory to this Agreement will not sub-contract any work within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America which is to be performed at the job site, except to a contractor who holds an agreement with the British Columbia Provincial Council of Carpenters. This clause shall not apply to sub‑contracts in progress as of April 30, 1970.

14.01 The following specific area of work is recognized as being within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America.

All work in connection with the installation, erection and/or application of all materials and component parts of walls and partitions regardless of their material composition or method or manner of their installation attachment or connection, including but not limited to the following items: all floor and ceiling runners, studs, stiffeners, cross bracings, fireblocking resilient channels, furring channels, doors and windows including frames, casing, moulding, base accessory trim items, gypsum dry wall materials, laminated gypsum systems backing board, finish board, fire-proofing of beams and columns, fire‑proofing of chase, sound and thermal insulation materials, fixture attachments including all layout work, preparation of all openings for lighting, air vents or other purposes and all other necessary or related work in connection therewith.

There is no doubt that the application of drywall materials to metal studs, being the subject‑matter of the status quo agreement, is within the work jurisdiction spelled out in art. 14.01. The evidence reinforces this view if reinforcement is necessary. The effect of art. 3.02 is to oblige contractors, as parties to the collective agreement through their association, to require any subcontractor, engaged to do any work falling within art. 14.01, to do it under an agreement with a local of the Carpenters’ Union. I pass over the issue of the coercive effect of this clause in the light of the provisions of the provincial labour relations legislation that protect employees in their freedom to choose a collective bargaining agent and prohibit employers

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from interfering in that choice. What art. 3.02 does is to force subcontractors, if they take work from any member of the Construction Labour Relations Association of British Columbia, to agree in advance to assign metal stud work to carpenters.

Is this in the teeth of the status quo agreement which provides that “work will proceed in accordance with the contractor’s assignment and that neither [union] will process cases involving metal studs … to receive drywall … before the National Joint Board …”? The answer is surely “yes” if any sensible meaning is to be given to this provision in the light of the circumstances out of which it arose. I say this under the status quo agreement as it stands and as well as it incorporates those provisions of the Blue Book that set out the contractor’s responsibility, where there is no decision of record or agreement to trammel his right and duty to make an assignment of work which his contract requires him to carry out. The collective agreement in its art. 3.02 forecloses choice according to prevailing practice in the locality or, if none, according to best judgment exercisable after consultation with representatives of the contesting trades.

I need not be concerned here with whether the status quo agreement ensures freedom to make a re-assignment as well as an original assignment without courting a protest to the National Joint Board. Counsel for the appellant Local 207 did not urge that re-assignments were protected from protest no less than original assignments, since it is only the latter that were put in issue.

Counsel for the respondent Local 452 denied that any breach of the status quo agreement would result from the implementation of the

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collective agreement. His main contention was that the status quo agreement ousted protests only as to original job assignments, that it said nothing as to what happens before an assignment is made by a contractor, and that therefore it was open to Local 452 (as to its parent) to anticipate the entire issue of original job assignments by a previous preclusion of the contractor’s freedom of choice. This is a submission which amounts to saying that a wholesale repudiation is permissible where a particular breach is not. It is completely untenable.

A subsidiary contention of the respondent Local 452 was that under art. 13 of the collective agreement any sting therein that offended against the status quo agreement was removed. Article 13 reads as follows:

13.01 In the case of a jurisdictional dispute over the allocation of work, the contractors will at all times make the assignment in line with international agreements between unions or in line with decisions of record or agreements of record as set out in the booklet “Plan for Settling Jurisdictional Disputes Nationally and Locally as Provided by the Building and Construction Trades Department, A.F.L.-C.I.O.” There shall be no stoppage of work provided these rules are followed.

13.02 If no international agreement exists or no agreement of record or decision of record applies to the work, the employer shall assign the work in accordance with the “Procedural Rules of the National Joint Board for Settlement of Jurisdictional Disputes”. The offended trade may then apply to the National Joint Board for the Settlement of Jurisdictional Disputes for a decision as to which trade the work belongs, and the decision of the National Joint Board for the Settlement of Jurisdictional Disputes shall be final and binding. The contractor will be held responsible for ensuring that all sub‑contractors assign work strictly in line with the foregoing method and to enforce such jurisdictional awards as may be rendered through this method.

13.03 Contractors and sub-contractors shall assign work to be performed within forty‑eight (48) hours of a written request or such longer time as may be

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mutually agreed upon. Contractors shall be responsible for ensuring that all subcontractors assign work to be performed strictly in accord with the foregoing.

13.04 If a contractor, sub-contractor, or owner fails to assign the work upon request as set out above or fails to implement a job decision of the National Joint Board after it has been handed down, it will not be a breach of this Agreement if the Union withdraws its members from the job after first giving twenty-four (24) hours notice of its intention to do so.

This article, on the submission of the respondent Local 452, was included in compliance with a requirement of art. IX, s. 4 of the constitution of the Building and Construction Trades Department of the AFL-CIO, of which the parent of Local 452 is a member, and which binds Local 452 equally with its parent. It is not strictly a reproduction of that requirement but carries out its import. I cannot, however, regard art. 13 as having any collective agreement force as against art. 3.02 so far as contractors and subcontractors thereunder are concerned. I do not see how contractors and subcontractors can at one and the same time be bound to agree in advance to assign metal stud work to carpenters and yet be left free to make an assignment to a competing union.

In my opinion, the only effect of the inclusion of art. 13 in the collective agreement is to recognize the jurisdiction of the National Joint Board if a protest is lodged by a competing union or perhaps by a disappointed subcontractor. It does not carry out the commitment of the status quo agreement to leave contractors and subcontractors free to make assignments without the risk of a protest to the National Joint Board. I note that Davey C.J.B.C., as he then was, was of the opinion in his reasons in the British Columbia Court of Appeal that art. 13 should be construed as relating to disputes over work not covered by art. 14. This, in effect, is a

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denial of its collective agreement force from another point of view.

I should add that the evidence shows that Local 452 enforced art. 3.02 as against subcontractors who had previously had collective bargaining relations with Lathers’ Union locals and, in the result, lathers lost work with, admittedly, disastrous effects upon Local 207 whose membership contracted very substantially. This evidence shows that art. 13 was of illusory force in relation to arts. 3.02 and 14.

I turn to the second matter for consideration, namely, whether Local 207 must first exhaust domestic procedures before resorting to the Courts. In the original interlocutory proceedings for an injunction Aikins J. not only refused an injunction but also ordered a stay of the action pursuant to a motion for such relief. On appeal from his judgment the refusal to grant an interlocutory injunction was affirmed, but the stay was lifted and this Court dismissed an application for leave to appeal from the order setting aside the stay. Following trial on the merits, an appeal was taken from the dismissal of the action by Macdonald J. and the majority of the Court of Appeal, in reasons by Tysoe J.A. concluded that the action was premature because what was in issue was a jurisdictional dispute between competing unions which were bound, as between themselves, to submit it in the first instance to the domestic settlement plan in the Green Book. It was the opinion of Tysoe J.A. that, notwithstanding the status quo agreement, Local 207 had a right of effective protest to the National Joint Board.

I cannot subscribe to this view of the matter. My conclusion thereon is that of Davey C.J.B.C. who held that the action was not foreclosed because of any obligation of prior recourse to the National Joint Board. In my view, the contention for prior recourse to the

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National Joint Board, whether based on the Green and Blue Books or on the constitution of the Building and Construction Trades Department of the AFL-CIO, involves a circular argument from which extrication, in my opinion, is possible only on the basis that the status quo agreement was outside of the competence of the parties. That agreement expressly excluded recourse to the National Joint Board in respect of contractor’s assignments of metal stud work pending a resolution of differences between the two unions by their two committees. The factum and argument addressed to this Court by counsel for the respondent Local 452 conceded this, but it was his contention (and I am repeating here what I have said earlier in these reasons) that the freedom of contractors to make assignments (subject to respecting prevailing practice in the locality or, if none, to the exercise of judgment after consulting with the representatives of the competing trades) could be controlled by a preclusive collective agreement before any assignment of metal stud work is made. I find no merit at all in this submission, especially when counsel for Local 452 conceded that the status quo agreement was still in force and was binding upon it.

The majority of the British Columbia Court of Appeal founded its conclusion of prematurity on the constitution of the Building and Construction Trades Department of the AFL-CIO as well as on the Green and Blue Books. That reliance does not advance the matter because art. X of the constitution respecting jurisdictional disputes merely refers to the Green and Blue Books. Having repeated myself on one point already, I do so on this one by reiterating that the argument of required recourse to the National Joint Board is sustainable, if circularity is to be avoided, only by a contention that the status quo agreement is invalid. Local 452 did not take this position. If it is bound by it, as it conceded it was, it is bound by the whole of it and not by a version whose heart is cut out. In my opinion, therefore, there are, in this case and

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as between these locals, no internal procedures for settlement that must be exhausted before recourse may be had to the courts.

In these circumstances, the appeal must be allowed at least to the extent of the appellant’s entitlement to the agreed damages of $1,000. The remaining question is whether the appellant is entitled to injunctive relief. The main issue on this aspect of the case is not whether the status quo agreement contains, expressly or by implication, a negative covenant, which would be enforceable as such, or whether that agreement lends itself to enforcement by injunction to restrain its breach (in either case damages being inadequate), but whether Local 207 is disentitled to this discretionary remedy because of the circumstances hereinafter set forth.

One of the disentitling circumstances was said to be the fact that the collective agreement in issue in the action expired. This is not an acceptable defence when it is the case that that agreement was replaced by another containing the same objectionable provisions. Then it was said that Local 207 was precluded by its conduct, or by conduct with which it was tainted, from claiming an injunction. Davey C.J.B.C. acted on this “clean hands” doctrine in denying injunctive relief. For the reasons which follow I come to the same conclusion.

I agree with the contention of counsel for Local 207 that the disentitling conduct must be related to the very matter in issue, but in my opinion that matter is not, as counsel urged, the challenged collective agreement; it is, rather, the observance of the status quo agreement. Three disentitling factors were alleged in the submissions of counsel for Local 452. First, that Local 207 had sought an agreement with contractors in which it was proposed to incorporate a clause like art. 3.02; second, that although the local

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called a strike when it was lawful to do so, it was for the purpose of compelling contractors to agree to a 3.02 clause; and, third, that a sister local, Local 566, entered into a collective agreement with contractors which contained such a clause.

Local 207 did not succeed in obtaining a 3.02 clause, and it contended that the strike was for the purpose of persuading contractors and subcontractors not to enforce the challenged collective agreement. Even assuming that the strike and consequent picketing were not because of the refusal of the contractors to agree to a 3.02 clause, the purpose alleged by Local 207 does not put it in any better position to claim an injunction. The contention as to the purpose in view amounts to an admission that the local was seeking to procure a breach of a collective agreement by parties thereto who were not parties to the status quo agreement. Unless this was coupled, as it was not, with a provable contention that the contractors who entered into the collective agreement with Local 452 had knowingly associated themselves with that local to violate the status quo agreement, the result is a strike and picketing for an improper purpose. Indeed, the picketing was on foot at the very time that the trial in the action herein was proceeding, an action in which the very relief was being sought which Local 207 was concurrently, on its admission, seeking to enforce through strike and picketing action. Although Local 566 was not a party to the action, the international union, the parent of both locals, was a party. It was through the international that the status quo agreement became binding on its locals and it has not been shown that it reproved or dissociated itself from Local 566 in obtaining the same advantage which was made the subject of this action. In the light of the foregoing, I do not think that an injunction would be warranted.

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Although I would not grant an injunction, Local 452 has succeeded in establishing a breach of the status quo agreement and a right to relief in damages. It has thus succeeded in substance although failing in its desired remedy. Accordingly, I would allow its appeal with costs in this Court and in the Courts below.

Appeal dismissed with costs, LASKIN J. dissenting.

Solicitors for the plaintiffs, appellants: Laxton & Co., Vancouver.

Solicitors for the defendants, respondents: Guild, Yule, Schmitt, Lane, Hutcheon, Vancouver.