Ontario Labour Relations Board

[1981] OLRB Rep. November 1620

0742-81-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Complainant, v. Sheafer-Townsend Construction Limited and United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 67, Respondents

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: David McKee and Matthew Bakker for the complainant; D. L. Brisbin and R. G. Mc Dade for Sheafer- Townsend Construction Limited; Stanley Simpson and Trevor Byrne for United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 67.

DECISION OF THE BOARD; November 12, 1981

1. This is a complaint under section 91 of the Labour Relations Act concerning the assignment of certain work made by the complainant trade union. The respondents have raised certain objections to the making of the complaint and the matter was listed for a hearing on these preliminary points.

2. The disputed work concerns the insertion and removal of "blanks" in certain standpipes on a coke oven at the Stelco Hilton Works in Hamilton. The blanks in question are plates of steel inserted at flange points on the standpipe in order to cut off or stop the fumes from an existing process.

3. The work in question was part of an extensive re-building during a shut-down of the coke ovens at Stelco. The respondent, Sheafer-Townsend Construction Limited (hereinafter referred to as Sheafer-Townsend) was awarded the contract by Stelco earlier this year. In consequence of this contract being awarded, the respondent, Sheafer-Townsend, held a mark-up meeting on February 17, 1981, at which the assignments for various phases of the work was discussed and settled by the employer. It appears that the work in question was not part of the original contract between Stelco and Sheafer-Townsend although it was probably apparent that such blanks would have to be inserted at a certain point. In any event, a contract change order was issued from Stelco to Sheafer-Townsend on May 28, 1981, which reads in part as follows:

"To perform the following:

— supply labour, tools and supervision to prepare for and install 73 pusher side blanks and by-products side service pipe

blanks"

Since this work was not covered at the pre-job mark-up the respondent, Sheafer-Townsend discussed the matter with the complainant, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 (hereinafter referred to as the Boilermakers), and the respondent, United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 67 (hereinafter referred to as the UA). Both trade unions claimed the work in question, and the respondent, Sheafer-Townsend decided to assign the work to both trade unions on a fifty-fifty basis. That is, the work was not to be done by a composite crew but crews of boilermakers and crews of pipefitters would each perform the blanking operation on alternative standpipes. The evidence is clear that the Boilermakers were not happy with such an assignment but were prepared to go along.

4. The work in question was to take place on Friday, June l2th.Theworkwastostart sometime in the morning; as the coke in the coke ovens cured and was taken out of the ovens, the blanks would be inserted. Once the process started it was to be completed within 24 hours as all the coke ovens were shut down. Since Stelco was not sure what time the coke ovens would be emptied, it appears that arrangements were made for one crew to start work at 8:00 a.m. on the Friday and work through to 8:00 p.m. at which point they would be replaced by another crew which would work through from 8:00 p.m. to 8:00 a.m. by which time the process of blanking would be completed. Arrangements had to be made for the second shift of employees, and the evidence of Mr. Harry Kostyshyn who was the field supervisor on this project for the respondent, Sheafer-Townsend, was that both unions were contacted about supplying a second shift. Some of the employees currently on the job were assigned to work on the evening shift and additional employees from both the trade unions were asked to report in at 7:00 a.m. on Friday morning to be prepared so that the Sheafer-Townsend crew could start blanking at any time after 8:00 a.m. as required by Stelco.

5. As noted above, the complainant, Boilermakers, were not happy with the proposed split assignment and it appears that representatives of the Boilermakers met with Mr. McDade of Sheafer-Townsend on Monday prior to the Friday on which the work was scheduled. There appears to have been some confusion about this meeting. Mr. Bakker and Mr. Tingley of the Boilermakers appeared at Mr. McDade's office in the morning. It appears that Mr. McDade was not in, however, the meeting was held that Monday afternoon. At that meeting, Mr. Bakker reaffirmed his position that the work was the work of the Boilermakers and should be assigned to them.

6. On the Tuesday of the week in question, Sheafer-Townsend was contacted by Stelco which indicated that certain blanks were to be installed before Friday as certain furnaces were being closed down before Friday since they were leaking. As a consequence of this, on Wednesday, Mr. Kostyshyn assigned crews of boilermakers to insert six blanks on furnaces which were being closed before the scheduled time. This in turn led to an accusation by the representative of the UA, Mr. Trevor Byrne, that Sheafer-Townsend had changed its assignment from the proposed fifty-fifty assignment. As a consequence, Mr. McDale called a meeting of the Boilermakers representatives, Mr. Bakker and Mr. Tingley, and the UA representatives, Mr. Byrne and Mr. Kerrigan on Thursday afternoon. At that meeting, it appears that Mr. McDade made it clear that the company intended to carry on with the fifty-fifty assignment and that the six blanks which had been installed, had been installed as a matter of convenience by the Boilermakers and further that under the proposed fifty-fifty rule the next six blanks would be assigned to members of the UA. At this meeting, it appears that Mr. McDade also raised with the representatives of the Boilermakers the matter that the men on the job site apparently had not been informed by the union as to the arrangements made concerning the assignment for the blanking. After the meeting, Mr. Bakker and Mr. Tingley went to the Stelco site where they talked with the Boilermakers working for Sheafer-Townsend on the coke oven, and it appears that the men on the site were extremely unhappy with this assignment. As pointed out by Mr. Bakker in his evidence the work in question was hot and dirty work. However, it was in effect a substantial overtime bonus for the men on the job site. Mr. Bakker's evidence as to his instructions to the men on the site was not clear. It appears that he informed the men that this was the assignment "made by the company".

7. Also on that Thursday afternoon, after the meeting, Mr. McDade got a call from Stelco. Stelco was concerned with the scheduling of the shut-down and asked McDade whether he anticipated any problems with the blanking which was to start on Friday morning. Mr. McDade was also advised that if there were problems that Stelco had another contractor, Jadco, ready to perform the work in question. On the morning of Friday the 12th, Sheafer- Townsend was advised by Stelco that the blanking would start some time shortly after 10:00 a.m. and they were advised to be ready to commence the blanking by 10:00 a.m. At about 10:00 a.m. it became apparent to Mr. Kostyshyn that Sheafer-Townsend was going to have trouble on the job. The first indication came when the general foreman of the Boilermakers contacted him to the effect that the Boilermakers were missing certain tools. These Kostyshyn proceeded to obtain from elsewhere on the site. It then appears that at about 11:00 a.m. Kostyshyn was informed by the job steward for the Boilermakers that the Boilermakers had gone home. From this point on, both Kostyshyn and McDade, tried to contact the representatives of the Boilermakers. They both found that Mr. Tingley was unavailable, although his evidence is that he was in the office that morning. Mr. Bakker refused to answer McDade's calls, however, McDade eventually got through to Bakker in Bakker's office. That conversation was interesting and its contents are not in dispute. McDade informed Bakker that the Boilermakers had walked off the job at Stelco, and that therefore they could be fired. Bakker's reaction was a flippant reaction accusing McDade of simply trying to ruin his weekend. Bakker also indicated to McDade that the men probably wouldn't have walked off the job if "Sheafer-Townsend had not changed the assignment".

8. In view of the foregoing, Sheafer-Townsend called in extra members of the UA to perform the work in question. Mr. Kostyshyn finally got through to Mr. Tingley and informed him that since the Boilermakers had walked off the job there was no need for them to report for the second shift. Sheafer-Townsend completed the job using crews of UA members and the work force finished by 5:00 a.m. or 6:00 a.m. on Saturday morning.

9. One other point should be mentioned. When the blanks were eventually removed several weeks later, the Boilermakers continued to refuse to deal with the blanks in question and in fact Sheafer-Townsend wound up assigning the removal of the blanks to members of the UA.

10. In the circumstances, counsel for the respondents takes the position that the Board ought not to proceed with the present complaint by the Boilermakers. Both counsel took the position that in a sense the Boilermakers had "abandoned" the claim for the work. Both counsel were quick to point out, however, that there appears to be no previous Board case in this area.

11. Counsel for the complainant takes the position that the walking off of the job was the work of individual tradesmen albeit to protect the jurisdiction of their union, but was not an act of the union as such.

12. We are of the view that this is a case where the Board should decline to hear the complaint under section 91 of the Act. The gist of the complaint is that the complainant should have been assigned one hundred per cent of the work. The assignment was made on a fifty-fifty basis. (In this regard we do not find that there has been a change in the assignment as alleged by the complainant). The Boilermakers disputed the assignment on a fifty-fifty basis and claimed that they were entitled to one hundred per cent of the work. However, the clear fact remains that once the assignment was to start the Boilermakers refused to perform any of the work including the fifty per cent which had been assigned to them. We are clearly of the view that they cannot now come to the Board having refused to do any of the work and claim that they are entitled to do all of the work. As noted above, the Boilermakers, both the members and the union may have been unhappy about the fifty-fifty assignment, however, that does not entitle them to withdraw their labour and refuse to comply with the fifty-fifty assignment. Simply put, it does not now lie in their mouth to say we want the work which we refused to do.

13. For the foregoing reasons we are of the view that the present complaint should be dismissed. That being the case it is not necessary to deal with the representations of the respondent UA, as to whether or not the Board should proceed with the present application or defer to the proceedings which were commenced before the Impartial Jurisdictional Disputes Board by the Boilermakers.