[1981] OLRB Rep. March 300
1801-80-M United Brotherhood of Carpenters and Joiners of America, Local Union 1669 and the Ontario Provincial Council of Carpenters, Applicant, v. Kapuskasing Board of Education, Respondent.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: Doug Wray and Sylvio Carriere for the applicant; Wallace M. Kenny and Al McNaughton for the respondent.
DECISION OF THE BOARD; March 2, 1981
This is a referral of a grievance to the Board pursuant to section 1 12a of The Labour Relations Act.
The applicant and the respondent are bound by the provincial provisions of a subsisting Provincial agreement covering carpenters and carpenters' apprentices employed in the industrial, commercial and institutional sector of the construction industry. Article 4.01 of the agreement states as follows:
Any work that is the work of the Union under the provisions of Article 19 of this Agreement shall only be sub-contracted to an employer bound by this agreement.
As its name indicates, the respondent is a public school board. These proceedings involve an addition being built to one of the respondent's schools. After advertising for, and receiving tenders for the construction of the addition, the respondent awarded a contract for the entire project to Hembruff and Dambrowitz, a general contractor not bound by the Provincial agreement. Certain of the work on the school is either being, or will be, performed by direct employees of Hembruff and Dambrowitz, although much of the work has been sublet to at least five different specialty contractors.
The applicant contends that by awarding the contract for the school addition to Hembruff and Dambrowitz, the respondent violated article 4.01 of the Provincial agreement. The respondent, however, takes the position that it cannot be bound by the terms of the Provincial agreement since, with respect to this particular project, it was acting only in its capacity as a school board and not as an employer in the construction industry. The respondent took great care to distinguish the facts at hand from those in an earlier proceeding (Kapuskasing Board of Education, [1972] OLRB Rep. June 587), wherein the Board found it to be an employer in the construction industry. In that case, the respondent had acted as its own general contractor in the construction of a swimming pool and had also directly employed certain carpenters working on the project.
In that the respondent is not directly employing any labour on the school project, and is also not acting as its own general contractor, we are of the view that it is not at the current time an employer in the construction industry. Instead, its status is that of an owner who has let a contract for an entire project to a general contractor. It may well be that an owner can be obligated by the provisions of a collective agreement to let out contracts only to general contractors in contractual relations with a particular trade union. However, the language in article 4.01 of the agreement before us does not contain such a restriction. Article 4.01 has reference only to the subcontracting out of work. Subcontracting involves the awarding of a secondary contract, whereby a subcontractor undertakes to perform certain of the obligations previously assigned to a principal or prime contractor. In the instant case, the respondent, in its capacity as an owner, has let a primary contract to a general contractor. The general contractor has, in turn, subcontracted certain of the work to other employers.
In that the respondent has only let a primary contract to a general contractor, and has not itself subcontracted out any work, we are of the view that its actions do not come within the purview of article 4.01. The grievance is accordingly dismissed.