Toronto-Central Ontario Building and Construction Trades Council v. Simcoe Mechanical Contracting Limited, 1981 CanLII 973

Toronto-Central Ontario Building and Construction Trades Council v. Simcoe Mechanical Contracting Limited

File No.: 0330-81-JD Date: October 9, 1981 Ontario Labour Relations Board

Between: Toronto-Central Ontario Building and Construction Trades Council and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Complainants, v. Simcoe Mechanical Contracting Limited and Christian Labour Association of Canada, Respondents, v. Mechanical Contractors Association of Toronto, Intervener #1, v. Mechanical Contractors Association of Ontario, Intervener #2.

Before: R. A. Furness, Vice-Chairman, and Board Members D. B. Archer and J. Wilson.

Appearances: A. M. Minsky, Win. Howard, Tom Wilson and M. Lloyd for the complainants; Win. R. Herridge, Q. C., Elizabeth Forster, Kerry Lee and Edw. Vanderkloet for Christian Labour Association of Canada; Gary Graham for Simcoe Mechanical Contracting Limited; G. Grossman and R. A. Werry for interveners #1 and #2.

Decision of the Board

1In a complaint which was filed on May 14, 1981, the complainants have requested that the Board issue a direction under section 91 of the Labour Relations Act with respect to the assignment of certain work. In a decision dated July 8, 1981, the Board held that it had jurisdiction to entertain this complaint.

2On September 9, 1981~ the parties to this complaint signed an agreed statement of facts. It is the expectation of the Board and the parties that the agreed statement of acts will substantially reduce the amount of viva voce evidence before the Board.

3After the presentation of the agreed statement of facts to the Board, the complainants made two motions to the Board. In the first motion the complainants sought to amend the relief claimed as set forth in their letter dated June 3, 1981, by adding the following paragraph:

An order that the Board alter the bargaining unit defined in any collective agreement between the Respondents which purports to include the recognition by Simcoe of CLAC as bargaining agent for plumbers and plumbers' apprentices in O.L.R.B. geographic area no. 8 by excluding and removing such recognition of CLAC in and for the said geographic area no. 8 and by amending such collective agreement accordingly.

4In the second motion the complainants sought to amend the description of the work contained in paragraph four of the complaint to the following description:

4. Detailed description of the work in dispute: All mechanical construction work at the Town of Vaughan's municipal administration building expansion project, Major MacKenzie Drive, Maple, Ontario ("the Project") consisting of the following work:

(a) Site Services and Plumbing and Drainage:

The handling, fabrication and installation of the complete plumbing and drainage systems as outlined in Sections 152 00 and 154 00 of the specifications and approved drawings provided for the Project, including:

(i) All sanitary and storm sewers inside the building and outside to the nearest manhole, main gathering sewer, or property limit, whichever is nearest to the building.

(ii) All water and fire mains within the property lines as shown on approved drawings, etc. and handling and installation of all fire hydrants including feed lines from the hydrants to the building.

(iii) All waste, vent, hot and cold water piping systems including all work involved in the extension of existing systems and the removal, relocation and/or installation of all fixtures and equipment required in Section 154 00 of the specifications and the accompanying drawings.

(iv) All piping systems supplemental to the plumbing systems, i.e. soap dispenser system, natural gas systems and appliances.

(v) All water-heaters, heat exchangers, pumps, tanks, circulators, access covers, gauges and thermometers, escutcheons, anchors, hangers, brackets and supports.

(a) Heating and Cooling Systems:

The handling, fabrication and installation of all piping systems and related equipment for a complete heating and cooling system, as required by Section 156 00 of the specifications, including:

(i) All piping required for the heating/cooling systems and condenser water systems including heat reclamation system and water treatment system.

(ii) All boilers, pumps, chillers, heat pumps, heat exchangers, storage tanks, coils, whether heating, cooling, preheat or reheat, condenser equipment, cooling tower, as required in Section 156 00 of the specifications.

(iii) All valves, expansion joints, flanges, chemical feed equipment, strainers, vents and vacuum breakers, pressure regulators, flexible connections, expansion tanks as required to complete all piping systems, including anchors, brackets and supports.

(iv) All fin-coil, fan-coil or other radiation which is part of a piping system.

(c) Ventilation:

(i) The installation of all piping and related pumps or other equipment that may be required for the supply of spray-water, drains from drip-pans or dehumidifiers or drain-tank.

(ii) The handling and installations of packages air-handling units using piping coils as a means of heat-transfer either liquid-to-air or air-to-liquid and of all fan-coil units as provided in Section 158 00 of the specifications and on approved drawings.

(d) Sleeving, Drilling and Cutting Holes:

The sleeving and drilling of all holes required in floors or walls of the building for the installation of any or all of the piping systems outlined above.

(collectively referred to as "the Work"). For purposes of clarification, the Work does not include the thermal insulation of and covering of piping, fittings, pumps, valves, boilers, ducts, flues, tanks, vats or equipment.

5In the complaint which was filed on May 14, 1981, the complainants described the work in dispute as follows:

4. Detailed description of the work in dispute: All mechanical construction work at the Town of Vaughan's municipal administration building expansion project, Major MacKenzie Drive, Maple, Ontario ("the Project") consisting of the following work:

(a) Site services, plumbing and drainage, including the handling, fabrication and installation of complete plumbing and drainage systems;

(b) The handling, fabrication and installation of all piping systems and related equipment for heating/cooling systems;

(c) Ventilation, including the installation of all piping and related pumps or other equipment;

(d) Fire protection, including the handling, fabrication and installation of the fire hose and standpipe systems;

(e) Sleeving, drilling and cutting holes, including the sleeving or drilling of all holes required in floors or walls for the installation or such piping systems as above;

(collectively referred to as "the Work"). For purposes of clarification, the Work does not include the thermal insulation of an covering of piping, fittings, pumps, valves, boilers, ducts, flues, tanks, vats or equipment.

6In the agreed statement of facts the nature of the work is set forth as follows:

IV

NATURE OF WORK

18. The work to be performed by Simcoe with its own work forces for~ the Town of Vaughan was as follows, except as otherwise noted:

19. Site Services and Plumbing and Drainage:

The handling, fabrication and installation of the complete plumbing and drainage systems as outlined in Sections 152 00 and 154 00 of the specifications and approved drawings provided for the Project, including:

(a) All sanitary and storm sewers inside the building and outside to the nearest manhole, main gathering sewer, or property limit, whichever is nearest to the building.

(b) All water and fire mains within the property lines as shown on approved drawings, etc. and handling and installation of all fire hydrants.

(c) All waste, vent, hot and cold water piping systems including all work involved in the extension of existing systems and the removal, relocation and/or installation of all fixtures and equipment required in Section 154 00 of the specifications and the accompanying drawings.

(d) All piping systems supplemental to the plumbing systems, i.e. soap dispenser system, natural gas systems and appliances.

(e) All water-heaters, heat exchangers, pumps, tanks circulators, access covers, gauges and thermometers, escutcheons, anchors, hangers, brackets and supports.

2. Heating and Cooling Systems:

The handling, fabrication and installation of all piping systems and related equipment for a complete heating and cooling system, as required by Section 156 00 of the specifications, including:

(a) All piping required for the heating/cooling systems and condenser water systems including heat reclamation system and water treatment system.

(b) All boilers, pumps, chillers, heat pumps, heat exchangers, storage tanks, coils, whether heating, cooling, preheat or reheat, condenser equipment, cooling tower, as required in Section 156 00 of the specifications.

(c) All valves, expansion joints, flanges, chemical feed equipment, strainers, vents and vacuum breakers, pressure regulators, flexible connections, expansion tanks as required to complete all piping systems, including anchors, brackets and supports.

(d) All fin-coil, fan coil or other radiation which is part of a piping system.

3. Ventilation:

(a) The installation of all piping and related pumps or other equipment that may be required for the supply of spray-water, drains from drip-pans or dehumidifiers or drain-tank.

(b) The handling and installations of package air-handling units using piping coils as a means of heat-transfer either liquid-to-air or air-to-liquid and of all fan-coil units as provided in Section 158 00 of the specifications and on approved drawings.

4. Central Systems:

The handling, fabrication and installation of all or any pneumatic control systems which may be required to control any of the piping systems outlined above, including the handling and installation of all equipment, instruments and control panels.

This work has been contracted to Robertshaw Controls (Canada) Ltd. which is bound by the Provincial Agreement. It is common practice in the industry to subcontract such central systems work to such specialized contractors.

5. Sleeving, Drilling and Cutting Holes:

The sleeving or drilling of all holes required in floors or walls of the building for the installation of any or all of the piping systems outlined above.

19. Fire protection, including fire hose and standpipe systems, was not included in the tenders submitted by mechanical contractors nor in the contract between the Town of Vaughan and Simcoe. However, the fire hydrants and feed lines from the hydrants to the building were included in the mechanical sub-contract bids, and in the contract between the Town of Vaughan and Simcoe. Subsequent to the execution of the contract between the Town of Vaughan and Simcoe, arrangements were made between the parties to the contract to delete the solar panels from the contract. Simcoe' s original bid was for $894,900 but the final contract price was $85 I ,O00. The parties agree that the work referred to in paragraphs 16 and 18 above is plumbers' and pipefitters' work.

7It was the position of the complainant that the first motion might be granted under section 58 of the Board's Rules of Procedure. With respect to the second motion, the complainant argued that the amended description resulted from ascertaining the truth of the precise nature of which work was being performed by the members of the respondent Christian Labour Association of Canada (CLAC). It was the position of the complainants that there was no surprise factor in its second motion and that the amendment which it was seeking was merely a particularized and clarified version of the nature of the work set forth in the complaint as modified by its subsequent greater knowledge of the work which was actually being performed.

8The interveners supported the complainants in their motions and argued that the complainants had made the first motion in a timely fashion and that such a motion was expressly contemplated in the Board's Rule of Procedure. With respect to the second motion, the interveners argued that there was no merit to be gained from differentiation on a technicality. The interveners emphasized that the complainants were seeking the work performed by Simcoe Mechanical Contracting Limited ("Simcoe") with members of CLAC. In the view of the interveners it was in the interest of all parties that the precise nature of the work in dispute be resolved at this stage of the hearing.

9Simcoe did not oppose the second motion. In opposing the first motion, Simcoe characterized this complaint as essentially a representation issue in which the complainants were attempting to displace CLAC as the bargaining agent for its employees. In view of Simcoe the Board does not have jurisdiction to entertain the first motion.

10CLAC opposed both of the complainants' motions. CLAC described the first motions as not being with respect to an assignment of work but as an attempt to run CLAC out of the Board's geographic area #8 and argued that the Board had no jurisdiction to do this under section 91. CLAC argued that the Board should not consider an amendment which is not sustainable at law and that if the amendment is allowed and the scope clause is amended so as to exclude the Board's geographic area #8 from the description of the bargaining unit then certain employees would not be represented by any trade union. In the view of CLAC, the Act does not permit such a result. CLAC adopted the position that it was the complainants' letter to Simcoe which gave the Board jurisdiction under section 91(1) and July 8,1981, the complaint was with respect to work and not whether the complainants are able to work and not whether the complainants are able to run CLAC out of the Board's geographic area #8. CLAC referred to section 91(15) and argued that it is triggered by a direction from the Board under section 91(1) with respect to particular work. CLAC viewed section 91(15) as giving the Board the power to alter a bargaining unit only to the extent that it is necessary to give effect to a direction of the Board under section 91(1). The operation of section 91(15) was interpreted by CLAC to be tied to the particular work referred to in a particular complaint. CLAC argued that section 91(15) did not give the Board the power to make the extraordinary wide order sought by the complainants in their first motion. With respect to the second motion, CLAC argued that the letter from the complainants to Simco triggered the jurisdictional dispute and that the jurisdictional dispute could not be expanded subsequently by the complainants. In the view of CLAC, the complainants ought to be limited to the terms of their complaint as originally made to the Board and to Simcoe.

11At the conclusion of the argument the Board ruled that the two motions of the complainants were granted and that written reasons would be provided, if requested by any of the parties. CLAC requested written reasons. These reasons are now set forth.

12Section 58 of the Board's Rules of Procedure provides as follows:

An application, reply, intervention, complaint, statement of desire to make representations or notice may be amended before or at the hearing by leave of the Board upon such terms and conditions as the Board considers advisable.

13With respect to the first motion, the complainants at this stage are merely requesting an additional form of relief in the framing of their complaint. The fact that a party to a proceeding before the Board requests certain relief does not, of course, mean that such relief will be granted by the Board. CLAC and Simcoe have addressed arguments to the Board which go to the merits of this complaint rather than to the form of the complaint. Arguments which go to the merits of a request for relief are clearly premature at the commencement of a hearing which is being held in order to determine the merits of the request for relief by the complainants. In our view, the complainants may frame their complaint so as to request relief under section 91(1) and (15) and the issue of whether such an amendment is sustainable at law is to pre-judge the merits of the complaint. The Board is not prepared to reach a conclusion on the sustainability at law of an amendment until it has heard all of the evidence and argument. The Board does have jurisdiction to entertain the first motion. In addressing argument to the Board, it appears that Simcoe was re-arguing questions of jurisdiction which were argued before the Board on June 10, 1981, and which were decided by the Board in its decision dated July 8, 1981. Clearly the Board has jurisdiction to permit the complainants to amend their complaint under section 58 of the Board's Rules of Procedure. The form of relief, if any, which may be granted to the complainants may be argued when all of the evidence has been adduced before the Board.

14With respect to the second motion, the Board finds that the complainants are seeking to set forth in greater particularity the work which is in dispute. It is surely in the interest of all the parties that all of the issues in dispute be litigated before the Board on one occasion rather than have additional jurisdictional disputes on other aspects of the work which is being performed. The wisdom of this approach is appreciated by Simcoe. The complainants have stated in general terms the essential nature of the work in dispute in their letter to Simcoe and in the complaint which was filed with the Board on May 14, 1981. The second motion is a response by the complainants to a greater degree of understanding of the work which is in dispute. The Board has jurisdiction to permit the amendment contained in the second motion.

15For the foregoing reasons the Board granted the two motions of the complainants.