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

[1982] OLRB Rep. September 1352

0330-81-JD 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, 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 and W Howard for the complainants; Gary Graham and Janice Rose for Simcoe Mechanical Contracting Limited; Win. R. Herridge, Q. C., Elizabeth Forster, Kerry Lee and Edward Vanderkloet for the Christian Labour Association of Canada; G. Grossman and R. A. Werry for interveners #1 and # 2.

DECISION OF THE BOARD: September 29, 1982

1. 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 which was performed for the Town of Vaughan. In a decision dated July 8, 1981, the Board held that it had jurisdiction to entertain this complaint and in a decision dated October 9, 1981, the Board granted two motions which were made by the complainants with respect to an amendment of the relief claimed as set forth in a letter of the complainants dated June 3, 1981, and secondly, with respect to the amendment of the description of the work which had initially set forth in the complaint which was filed on this matter.

2. The complainant, Toronto-Central Ontario Building and Construction Trades Council ("the Council") is a Council of .trade unions which are affiliated with the International Building Trades Unions and which have AFL-CIO-CLC building trades jurisdiction in Ontario, and, more particularly, in the Board's geographic area #8 and central Ontario. The complainant, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 ("Local 46"), is an affiliated local union of the Council and has approximately 4,000 members employed as plumbers, steamfitters, pipefitters, welders and apprentices thereto. Local 46 is a local union of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the United Association") which is an International union having its head office in Washington D.C. and its Canadian head office in Winnipeg, Manitoba. Usually, it has been the practice of local trade unions which are affiliated with the Council to organize along craft or trade lines.

3. Prior to the enactment of the scheme of provincial bargaining in Bill 22. Local 46 was a party to collective agreements, from time to time in effect, with the Mechanical Contractors Association of Toronto ("MCAT"), which employer's organiza­tion represented the mechanical contractors with whom Local 46 bargained. In a decision dated January 9, 1972, the Board issued a certificate of accreditation to the MCAT as the bargaining agent for all employers of plumbers, steamfitters, welders and their apprentices on whose behalf Local 46 had bargaining rights in the judicial District of York, that portion of Ontario County lying west of the Pickering/Whitby Township line, Peel County, that portion of Halton lying south of Highway 401 and east of the 7th line and Dufferin County in the industrial commercial and institutional sector of the construction industry (the "ICI sector"). Reference is made to the decision of the Board dated January 9, 1972, in Board File No. 1345-71-R.

4. The Mechanical Contractors Association of Ontario ("MACO") and the Ontario Pipe Trades Council of the United Association, are the employer and employee bargaining agencies who are designated to represent in bargaining provincial units of affiliated bargaining agents, have been parties to provincial agreements covering plumbers, steamfitters, pipefitters, welders and apprentices thereof in the employ of mechanical contractors for whom the local unions of the United Association, including Local 46 have bargaining rights in the Province of Ontario in the ICI sector. The first provincial agreement was effective from June 15, 1978, until April 30, 1980, and the subsequent provincial agreement was effective from May 21, 1980, until April 30, 1982 (the "provincial agreement").

5. Since the decision of the Ontario High Court in Regina v. The Ontario Labour Relations Board, et al., 1963 CanLII 117 (ON HCJ), 39 D.L.R. (2d) 593, the Christian Labour Association of Canada ("C.L.A.C."), an independent Canadian trade union with its head office in Toronto, has been organizing construction and other workers throughout Ontario and elsewhere in Canada. The C.L.A.C.'s usual method of organizing is to organize all employees of an employer. This results in the C.L.A.C. representing a number of different trades. Until 1963, no other trade union in Ontario organized plumbers and pipefitters except the local unions of the United Association. In 1963, the C.L.A.C. commenced to organize tradesmen in the construction industry, including plumbers and pipefitters. The bulk of the C.L.A.C.'s organizing efforts in the construction industry have been in Board areas other than geographic area #8. Apart from the local unions of the United Association, no other union in Ontario except the C.L.A.C., at present, is actively engaged in organizing plumbers and pipefitters.

6. Simcoe Mechanical Contracting Limited ("Simcoe") is a mechanical contrac­tor with its head office in Orillia, which is in the Board's geographic area #18. Simcoe has been in the mechanical contracting business since 1960. The principals of Simcoe, Mr. C. Waunch and Mr. C. Dettmers, have also carried on the business of mechanical contracting through a corporation originally incorporated as Simkon Contracting Lim­ited on September 27, 1976. On February 28, 1979, the name of this latter corporation was changed to Simcoe Mechanical and Electrical Contracting Limited. The work in issue in this case has been, and continues to be performed by Simcoe. Since March of 1971, the invariable practice of Simcoe, and since 1976, that of Simkon Contracting Limited (Simcoe Mechanical and Electrical Contracting Limited) has been to employ members of the C.L.A.C. The terms of such employment are contained in the following collective agreements which have been filed with the Board:

(a) Current collective agreement between Simcoe and the C.L.A.C., which recognizes the C.L.A.C. as the bargaining agent for all employees of Simcoe throughout Ontario and states that it is to run from May 1, 1980, to April 30, 1982. The collective agreement was actually executed by the parties on April 29, 1981;

(b) Agreement between Simkon Contracting Limited and the C.L.A.C. effective from May 1, 1978 until April 30, 1980. By "Supplementary collective agreement" the parties to this agree­ment agreed to change the employer's name to Simcoe Mechani­cal and Electrical Contracting Limited;

(c) Agreement dated May 10, 1976, between Simcoe and the C.L.A.C. effective from May 1, 1976, until April 30, 1978. By "supplementary collective agreement" the parties to this agree­ment agreed that effective February 17, 1978, the employer's name would be Simkon Contracting Limited and that "effective February 17, 1978, the collective agreement dated May 10, 1976, shall be expanded to cover and include the whole Province of Ontario." At that time Simkon Contracting Limited had employ­ees working in the Board's geographic area #8;

(d) Agreement dated March 28, 1974 between Simcoe and the C.L.A.C. effective from May 1, 1974 until April 30, 1976;

(e) Agreement dated May 24, 1972, between Simcoe and the C.L.A.C. effective from August 1, 1972, until April 30, 1974;

(t) Agreement dated March 29, 1971 between Simcoe and the

C.L.A.C. effective from March 31, 1971, until July 31, 1972.

Neither Simcoe nor Simkon Contracting Limited (Simcoe Mechanical and Electrical Contracting Limited) have a bargaining relationship with the Council or any of its affiliated local unions, including Local 46, but rather only employ members of the C.L.A.C.

7. Prior to March of 1971, Simcoe's employees were represented by Local 599 of the United Association. On March 23, 1971, the Board issued a certificate to the C.L.A.C. for the Board's geographic area #18 after a representation vote in which the C.L.A.C. displaced Local 599. Subsequent certifications obtained by the C.L.A.C. are as follows:

Date of O.L.R.B. Board Area Certification 16 September 13, 1971 28 October 10, 1972 13 March 29, 1973 30 May 30, 1974 10 July 5, 1974 9 October 28, 1974 11 June 6, 1975 1 June 25, 1977.

Since 1971, Local 599 of the United Association has attempted to displace the C.L.A.C. in respect of Simcoe's employees in the Board's geographic area #18 and part of the District of Parry Sound on two occasions. These attempted displacements led to representation votes and on both occasions the C.L.A.C. was successful in retaining its bargaining rights. Reference is made to Board File Nos. 1814-75-R and 0150-78-R

8. This complaint arises out of certain work which was performed for the Town of Vaughan. The Town of Vaughan called tenders for the construction of its municipal administration building expansion project on Major McKenzie Drive in Maple ("the project"), and a sealed tender was submitted by C. A. Smith Contracting Limited ("Smith"), a general contractor having a working agreement with the Council. In addition, various other general contractors submitted sealed bids in connection with this project. Smith's tender carried All Can Plumbing & Heating Limited ("All Can"), as a subcontractor which was to perform the mechanical construction work at the project. All Can had executed a "pick-up" agreement with Local 46, dated July 18, 1979, by which All Can accepted the provincial agreement then in force. Smith is not a member of the MCAT or MCAO.

9. Simcoe had submitted bids to a number of general contractors, including Smith, and was the lowest of the mechanical contractors; its bid was lower than All Can's by $134,100.00. However, Smith refused to carry Simcoe as its mechanical subcontractor because Smith was a party to a working agreement with the Council and, as such, could only carry mechanical subcontractors whose employers were members of an affiliated local union of the Council.

10. The Town of Vaughan requested that Smith delete the mechanical construction work from its tender, and on such a revised basis, on November 4, 1980, entered into a contract with Smith for all construction work at the project, save and except the mechanical construction work. On that date, the Town of Vaughan also entered into a direct contract with Simcoe for such work. In or about the first week of April, 1981, construction work commenced at the project, and on or about April 15, 1981, Simcoe commenced the mechanical construction work at the project pursuant to its contract with the Town of Vaughan and such work was carried out by plumbers and plumbers' apprentices employed by Simcoe and represented by the C.L.A.C.

11. In a letter dated April 23, 1981, the complainants requested an assignment of the mechanical construction work. In its letters dated May 12, 1981, and addressed to he complainant Council, Simcoe denied the complainants' request to employ members of Local 46. Simcoe continued to be engaged in the performance of the work on the project and employed members of the C.L.A.C.

12. The nature of the work to be performed by Simcoe with its own employees for the Town of Vaughan has been as follows, except as noted otherwise:

13. Site Services and Plumbing and Drainage:

The handling, fabrication and installation of the complete plumb­ing and drainage systems as outlined in sections 15200 and 15400 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 accompanying drawings;

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

(e) all water-heaters, heat exchanges, 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 system 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, pre-heat or re­ heat, 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; and

(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 regulated pumps or other equipment that may be required for the supply of spray-water, drains for drip-pans or dehumidifiers or draintank; and

(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 sub-contracted to Robertshaw Control (Can­ada) Ltd. which is bound by the provincial agreement. It is a common practice in the industry to sub-contract such central systems work to specialized contractors such as Robertshaw Controls (Canada) Ltd.

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.

13. Fire protection, including fire hose and the stand pipe systems, was not included in the tenders submitted by the mechanical contractors and was not 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 subcontract 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 $894,900.00, but the final contract price was $851,000,00. The parties agree that the work performed by Simcoe at the project is the work of plumbers and pipefitters.

14. No person may work as a plumber or as a pipefitter in Ontario (regardless of sector) unless he or she has served a period of apprenticeship and received a certificate of qualification from the Ministry of Colleges and Universities. All journeymen who are members of either Local 46 or the C.L.A.C. are qualified plumbers and pipefitters and all apprentices who are members of either Local 46 or the C.L.A.C. are working towards obtaining the qualifications as plumbers and pipefitters.

15. Since March of 1971, the invariable practice of Simcoe, and since 1976, that of Simkon Contracting Limited (Simcoe Mechanical and Electrical Contracting Lim­ited) has been to employ members of the C.L.A.C. to do plumbing and pipefitting work, including work such as the work performed at the project by Simcoe. Simkon Contracting Limited (Simcoe Mechanical and Electrical Contracting Limited) has done the following jobs in the Board's geographic area #8:

(a) The Pump and pipe work at the Aurora Pumping Station which was completed in 1980 for $88,900.00;

(b) the plumbing, heating and ventilation work at the St. Paul's School in Newmarket which was completed for $256,688.00 in 1978; and

(c) the plumbing, heating and installation work at the Holland Landing Public School which was completed in 1979 for $168,447.00.

16. Local 46 is the affiliated union of the Council which has AFL-CIO-CLC plumbing and pipefitting jurisdiction in an area which includes the Board's geographic area #8. The C.L.A.C. is not affiliated with the AFL-CIO-CLC and is not an affiliated trade union of the Council. There are no written agreements or informal understanding between the C.L.A.C. and Local 46, or between the C.L.A.C. and the Council as to work jurisdiction or otherwise.

17. The work referred to in paragraph 12 falls within the ICI sector. The value of plumbing and pipefitting work, including work of the same type as that referred to in paragraph 12, in the ICI sector performed in Board area #8 by contractors who have been bound to collective agreements with or binding upon Local 46, including since 1978 the provincial agreements referred to earlier, amounts to two hundred million dollars on average on an annual basis. The aggregate value of this work over the most recent ten-year period range between one billion dollars and two billion dollars.

18. The contractors referred to in the preceding paragraph have performed plumbing and pipefitting work, including work of the same type as that referred to in describing the work at the project, in the ICI sector in the Board's geographic area #8 employing exclusively members of Local 46. These contractors include Comstock International Limited, Fischback & Moore of Canada Limited, H. Griffiths Company Limited, Niagara Mechanical Limited and Steen Contractors Limited. The plumbing and pipefitting work referred to earlier includes all, or virtually all, of the major construction projects in the Board's geographic area #8, including, by way of example, the Royal Bank Plaza, Ashbridges Bay, John Robarts Library, Canada Wonderland, First Canadian Place and Toronto International Airport, etc. The value of such contracts is often in excess of one million dollars and ranges up to twenty million dollars. The number of tradesmen engaged in plumbing and pipefitting work on each project ranges up to 400 employees.

19. In the most recent ten-year period, contractors, including Simcoe, who employ members of the C.L.A.C., have performed approximately four and a half million dollars of work of plumbing and pipefitting work, including work of the same type referred to in paragraph 12 in the Board's geographic area #8. Some examples are the Lakeview Water Treatment Plant ($600,000.00), Oakville Pumping Station ($600,000.00), Ajax Water Treatment Plant ($600,000.00) and Brampton Pumping Station ($160,000.00). Some plumbing and pipefitting work in the ICI sector is done by non-union contractors and "in-house" by workers who are either unorganized or organized by Industrial unions. The value of such work is estimated to be between ten and fifteen million dollars each year.

20. On a province-wide basis in the ICI sector of the construction industry, plumbing and pipefitting work is performed as follows:

(a) The dollar volume of plumbing and pipefitting work in the industrial, commercial and institutional sector performed by plumbers and pipefitters of the United Association amounts to several hundred million dollars each year;

(b) the dollar volume of plumbing and pipefitting work in the industrial, commercial and institutional sector performed by plumbers and pipefitters of the C.L.A.C. amounts to several million dollars each year; and

(c) the dollar volume of plumbing and pipefitting work in the industrial, commercial and institutional sector performed by non-union tradesmen and "in-house" crews of tradesmen who are members of industrial unions or who are not organized by any trade union exceeds thirty million dollars annually.

21. The following is a list of the bids for the mechanical trade work received by the Toronto Bid Depository for the project affected by this complaint:

Simcoe Mechanical Contracting Limited — $894,000.00

George A. Kelsen Limited (bid withdrawn before tenders closed) —$950,000.00

All Can Plumbing & Heating Limited - $1,029,000.00

Durcard Mechanical Contracts Limited — $1,031,500.00

Monette Mechanical Contractors Limited — $1,090,000.00

J. A. Norton & Company Limited - $1,115,000.00

Thornber & Brown Mechanical Contractors Limited — $1,130,571.00

Scope Mechanical Contractors Limited — $1,145,000.00

Banelis Plumbing & Heating Limited — $1,182,545.00.

22. As early as 1970, the Town of Vaughan made plans to quadruple the space in its municipal offices. The Town budgeted the sum of 3.6 million dollars for this additional construction. It was decided by the Town of Vaughan that a full tender call would be used in inviting bids for the construction of its additional space. An architect was retained by the Town of Vaughan and subsequently the services of a consulting engineer were retained with respect to the mechanical work for the expanded facilities. When the figures became known for the full tender call in October of 1980, it became apparent that due to the underestimating of the consulting engineer with respect to the mechanical work, and to a lesser extent also with respect to the electrical work, the project had been seriously underestimated. The full tender call submitted by Smith was 4.4 million dollars. The Town of Vaughan was disappointed that the project to quadruple its space was faced with a short fall of some eight hundred thousand dollars. The Town of Vaughan instructed its architect to examine various possibilities so that the project could be brought within budget. Various aspects were considered in order to make economies, such as changes in design, equipment and materials. Ultimately, the architect devised a scheme to reduce the cost by using Simcoe to perform the mechanical work. This meant, of course, that the mechanical work which had been included in Smith's bid would be taken away from Smith and given directly to Simcoe. This was necessary because Smith was unable and unwilling to use Simcoe as a subcontractor. Smith, of course, was unable to use Simcoe as a subcontractor because of its obligations to the Council. Before awarding the mechanical contract to Simcoe, the Town of Vaughan investigated its legal position and received advice that there were no legal obstacles to prevent it from proceeding with two separate contracts, namely, one for the mechanical work with Simcoe and one for the balance of the work with Smith.

23. Upon discovering that Simcoe was to be considered for the mechanical work, Local 46 and the Council made vigorous attempts to secure the work for members of Local 46. The Council wrote a letter to Simcoe requesting an assignment of the work in dispute and a representative of the Council spoke to the architect and also spoke at the Council meeting on November 4, 1980, and pointed out the contractual relationships between Smith and the Council and strenuously lobbied for the work to be given to members of Local 46. The efforts of Local 46 and the Council were rejected by the Town of Vaughan, and the Town of Vaughan approved the contracting of the work necessary for the project to Smith and Simcoe as aforesaid.

24. A representative of the C.L.A.C. also spoke at the Town of Vaughan Council meeting on November 4, 1980, and informed the representatives of the Town of Vaughan that the C.L.A.C. was able to handle any on-site problems which might arise in connection with the performance of the mechanical work by Simcoe using members of the C.L.A.C. The evidence before the Board indicated that both the architect and the consulting engineer had satisfied themselves that Simcoe was able to perform the work at the project, and the evidence before the Board indicated that the work being performed by Simcoe was being performed to the satisfaction of the Town of Vaughan, its architect, and its consulting engineer. The work performed by Simcoe was also up to the required schedule for the project.

25. The work at the project continued without any disruption and with harmony between the various trades who were working on the project. The work of Smith and Simcoe was co-ordinated at various times by meetings on the site. There was no evidence of any difficulty in the supervising of the work of Simcoe at the site.

26. In making directions under section 91 of the Act, the Board has used various criteria in order to make its directions. The criteria which the Board normally uses, and which the Board proposes to use in this complaint, are the criteria of collective bargaining relationships, skill and training, considerations of economy and efficiency, employer practice, and area practice. See: Anchor Shoring Limited, [1974] OLRB Rep. Aug. 528; Deep Foundations Limited, [1975] OLRB Rep. March 175, and Urban Consolidated Construction Corporation Ltd., [1977] OLRB Rep. Feb. 41. There is no collective agreement between Local 46 and Simcoe. There is a collective agreement between the C.L.A.C. and Simcoe. The evidence before the Board with regard to this collective agreement established that the collective agreement was signed on April 29, 1981, and became effective on May 1, 1980. This collective agreement was signed after Simcoe commenced the project, and was signed after complaints had been made by Local 46 and the Council about the performance of the work by Simcoe with members of the C.L.A.C. The collective agreement extended its coverage into the Board's geographic area #8 for the first time on April 29, 1981, and while the collective agreement refers to plumbers, it does not mention pipefitters. While the attitude of the C.L.A.C. and Simcoe towards the signing of current collective agreements is certainly casual, there is no question that the employees working on the project were paid according to the rates provided for in the collective agreement which became in effect on May 1, 1980; from the time the collective agreement became effective. It appears from the evidence that the collective agreement was negotiated some time before it was signed, but that due to the losing of various draft copies, the collective agreement was not signed until April 29, 1981. While the present collective agreement represented an extension of the geographic area covered by the collective agreement, there was no question before the Board that the C.L.A.C. was entitled to represent the persons who were working on the site. The C.L.A.C. and Simcoe were parties to a series of collective agreements which covered both plumbers and pipefitters. The criterion of collective bargaining relationships favours the claim of the C.L.A.C. to the work in question.

27. With respect to skill and training, it is quite clear that Simcoe's employees at the project have the necessary skills and training to perform the work to the satisfaction of the Town of Vaughan, its project co-ordinator, its architect, and its consulting engineer. There is no question on the evidence before the Board that the employees who work for Simcoe have the necessary certificates of qualification under the Apprentice­ship and Tradesmen's Qualifications Act, R.S.O. 1980, c. 23. Local 46 has an elaborate training centre in Toronto which offers courses of instruction which are, in some instances, parallel to the courses offered by the community colleges of this province and which are also, in some instances, additional to such courses. These courses cover a wide variety of subjects and are available only to members of the United Association. The evidence is that apart from apprentices, about 200 out of a total membership of 4,000 of Local 46 attend these courses. This is about five per cent of the membership. The evidence revealed that in obtaining members from the hiring hall, there would be no way of ensuring that persons who had take specific courses were in fact referred to job which required those courses. Moreover, there was nothing to indicate that any of the additional courses offered at the training centre were necessary for the performance of the job by Simcoe's employees at the project. The C.L.A.C. does not offer a system of private courses, and the persons who become apprentices with Simcoe apparently attend the courses given at community colleges. While the apprentices who attend the courses given at the training centre appear to have a lower failure rate than the provincial average, all journeymen who work for Simcoe, or any other employer in this province, have the certificate of qualification referred to previously. One of Simcoe's employees had not submitted himself to a retesting in connection with his welding licence. It appears that this was an oversight by Simcoe and that there was no problem with his performance of any welding work at the project. In our view, this oversight does not have any impact on the criterion of skills and training. In Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775, the Board indicated that attempts to increase the skill of employees through developed courses of study is a method by which a trade union can protect its jurisdictional claim with respect to certain type of work. The remarks in that case are obiter since the case appeared to turn on an assignment being made because a trade union had the jurisdiction in a particular geographic area on certain commercial projects. In the instant case, while the courses offered by Local 46 are commendable, there was no evidence before the Board to show that these courses are necessary in order for the work to be completed at the project. The criterion then of skills and training favours neither the claims of Local 46, nor the claims of the C.L.A.C.

28. The criterion of considerations of economy and efficiency favour the claims of neither Local 46 nor the C.L.A.C. It was argued that the differential in the wage rate between those two trade unions was a factor of economy which favour the claims of the C.L.A.C. The Board does not agree with this approach to the question of economy and efficiency. The fact that there is a wage differential of approximately four dollars in favour of the C.L.A.C. is not, in our view, a factor which affects this criterion of economy and efficiency. In the past, when the Board has referred to this criterion, it has referred to the fact that this criterion does not mean that the cheapest union succeeds under this heading. See: Anchor Shoring Limited, supra, and Urban Consolidated Construction Corporation Ltd., supra. In considering the criterion of economy and efficiency, the Board considers such factors as the efficient and economical employment and scheduling of a work force, see, for example, Adam Clark Company Limited, Board File No. 0911-75-JD, unreported decision of the Board, dated May 21, 1976.

29. The question of the employer's practice on the facts of this case indicates that Simcoe does not have an established practice in the Board's geographic area #8. Simcoe has performed projects in the ICI sector in order Board areas, such as for example, the Board's geographic area #18. There is evidence of the practice of Simkon in the Board's geographic area #8. However, Simkon, while it obviously enjoys a close relationship with Simcoe, is not the employer on the project before the Board. The Board has never made a finding under section 63 or section 1(4) of the Act. While the nature of the relationship between the principals involved in Simcoe and Simkon indicates a close relationship, the Board is not prepared to find that the criterion of employer practice is sufficiently well established on the evidence before it so as to support the claims of the

C.L.A.C.

30. The final criterion of area practice massively favours the claim of Local 46 to the work on the project. In some instances, the area practice alone has been sufficient to establish the claim of one trade union over the claim of another trade union. See, for example, Ilena Construction Company Limited, supra. However, in K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185, the fact that area practice favoured one trade union was not sufficient to cause the Board to award the work in dispute to that trade union.

31. In many respects this complaint is not a typical complaint under section 91. In this complaint the Board is dealing with competing claims for the work in dispute based not upon a trade or test of useful skill, but rather on the basis of union membership. The employees of Simcoe have selected the C.L.A.C. more than a decade ago as their bargaining agent, and have on two occasions rejected an attempt by the locals of the United Association to displace the C.L.A.C. as their bargaining agent in secret ballots conducted by the Board. The criterion of area practice, or, as it has been characterized by the complainant, as a question of trade stability, has not always proven to be decisive before this Board. In the context of this complaint, it appears to the Board that the criterion of area practice ought not to be decisive. The complainant is part of a trade union which is represented across the Province of Ontario. It appears to the Board that there is hardly a geographic area, or a sector of the construction industry where the complainant or one of its sister local trade unions, would not be able to establish that the area practice favours its claim. If the criterion of area practice is to receive paramount weight by the Board, it will therefore follow that the C.L.A.C., notwith­standing its collective bargaining relationships and the wishes of the employees that it represents, would almost always, if not always, be unsuccessful in this criterion. The C.L.A.C. organizes on a multi-craft basis and is a much smaller trade union compared with the complainant and its sister locals. The complainant in its relief is requesting modifications to the collective agreement of the C.L.A.C. under subsections 15 and 18 of section 91, and asks the Board to exclude the Board's geographic area #8 from the coverage of that collective agreement. Presumably, it would also be open in a similar complaint for sister locals of Local 46 to request a similar modification of the collective agreement of the C.L.A.C. in their various jurisdictional areas.

32. As the Board noted earlier, this complaint is not a typical complaint under section 91 of the Act. Certainly there are two trade unions which earnestly seek the work in dispute. However, the work in dispute falls squarely within the trades of plumbing and pipefitting, and is most certainly not marginal and not peripheral to those trades. The essential question of the skills involved underlines the fact that this complaint is essentially representational in nature rather than jurisdictional. The C.L.A.C. was variously characterized in this complaint as an irritant, as undermining the position of Local 46, and as causing instability in the industry. It was pointed out that the area practice, or industry stability, was an important factor in maintaining harmonious industrial relations in the construction industry. While the Board agrees that harmonious labour relations ought to be maintained in the construction industry, the Board does not agree that this ought to be achieved at the expense of a trade union which has been recognized as such by the Board, and which has been successful in freely establishing collective bargaining rights and collective agreements in various areas of this province. The C.L.A.C. is not an affiliated bargaining agent and, of course, is not represented by an employer bargaining agency under the scheme of province-wide bargaining in the ICI sector. Section 144(5) of the Act clearly provides a place for the existence of the C.L.A.C. and its bargaining rights in the scheme of industrial relations in the construction industry in this province. This being the case, the Board is not prepared to accept the argument of irritants, and industry stability as a reason for taking the work away from members of the C.L.A.C. No doubt the arguments concerning irritants, instability in the industry and harmonious labour relations could be made as an argument for eliminating employees who are not parties to or bound by a collective agreement with a trade union. In the result, while the various criteria have been examined, and while the criterion of area practice massively favours Local 46, and the criterion of collective bargaining relationships favours the claims of the C.L.A.C., the Board, having regard to its view of the underlying nature of this proceeding before the Board, makes the following direction:

The Board directs pursuant to section 91(1) of the Act that Simcoe Mechanical Contracting Limited continue to assign to members of the Christian Labour Association of Canada the following work:

1. 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 accompanying drawings;

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

(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 sys­tems, as required by section 156 00 of the specifications, includ­ing:

(a) all piping required for the heating/cooling system 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, pre-heat 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 requiring to complete all piping systems, including anchors, brackets and supports; and

(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 regulated pumps or other equipment that may be required for the supply of spray-water, drains for drip-pans or dehumidifiers or drain-tank; and

(b) the handling and installation 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 sub-contracted to Robertshaw Controls (Canada) Ltd. which is bound by the provincial agreement. It is a common practice in the industry to sub-contract such central systems work to specialized contractors such as Robertshaw Controls (Canada) Ltd.

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.