[1982] OLRB Rep. April 576
0686-81-JD Harold R. Stark Company Limited, Complainant, v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463, Labourers' International Union of North America, Ontario Provincial District Council, A Council of Trade Unions for Teamsters Local 230, and Labourer's Union, Local 597, Respondents, Oshawa Paving Ltd., Oshawa Area Signatory Contractors, Interveners
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
DECISION OF IAN SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBERS C. A. BALLENTINE; April 16, 1982
1The applicant, Harold R. Stark Company Limited ("Stark"), has requested that the Board reconsider its decision of February 8, 1982, wherein it concluded that this matter did not come within the provisions of section 91 of the Labour Relations Act.
2Stark is bound by the terms of the provincial agreement relating to the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (the "U.A") as well as by the terms of the provincial agreement relating to the Labourers' International Union of North America (the "Labourers"). Stark has sublet certain work to Oshawa Paving Ltd. and, accordingly, has no employees of its own engaged in performing the work. Oshawa Paving is bound by a collective agreement with a council of trade unions of which Labourer's Local 597 is a member. U.A. Local 463 has filed a grievance against Stark under the U.A. provincial agreement claiming that the company violated the agreement by not subletting the work in question to a firm bound by a U.A. agreement. Neither U.A. Local 463 nor Stark sought to get Oshawa Paving to reassign the work to members of the U.A. Stark did, however, file the instant complaint under section 89 of the Act.
3In its decision of February 8, 1982, the Board reviewed both the wording of section 91(1) of the Act as well as the legal precedent underlying the section and concluded that Oshawa Paving and not Stark was the "employer" within the meaning of section 91(1), and that, accordingly, Stark could not bring a complaint under that subsection. In its request for reconsideration, Stark requested that the Board treat this application as falling under section 91(18) which provides as follows:
Where an employer is a party to or is bound by two or more collective agreements and it appears that the description of the bargaining unit in one of such agreements conflicts with the description of the bargaining unit in the other or another of such agreements, the Board may, upon the application of the employer or any of the trade unions concerned, alter the description of the bargaining units in any such agreements as it considers proper, and the agreement or agreements shall be deemed to have been altered accordingly.
4For the purpose of these proceedings, we will assume that Stark is an employer within the meaning of section 91(18). Section 91(18) speaks to situations where an employer is bound to two or more collective agreements where it appears that the description of the bargaining units conflict. The bargaining unit covered by a collective agreement is generally set out in a "recognition clause" at the commencement of the agreement. The recognition clause in the two relevant provincial agreements are as follows:
The U.A. Agreement
ARTICLE I - DEFINITIONS
1.1 "Association~~ means the Mechanical Contractors Association Ontario and any successor or assign.
1.2 "Council" means the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and any successor or assign.
1.8 "Employee" means a qualified and/or Certified Journeyman or Apprentice employed by a Contractor as a plumber, steamfitter, pipefitter, welder, and apprentice thereof, or job foreman.
ARTICLE 2 - RECOGNITION
2.1 The Association agrees to recognize the Council as the sole collective bargaining agent for all employees of the Contractors as defined in Definition 1.8.
The Labourer's Agreement
ARTICLE I - RECOGNITION
1.01 The E.B.A [Employer Bargaining Agency] recognizes the Union as the sole and exclusive bargaining agent for all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work and all other construction Employees engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, for whom the Union has bargaining rights.
5The U.A. agreement, as is the norm in the construction industry, clearly covers a craft bargaining unit, namely journey men and apprentice plumbers, steamfitters, pipefitters and welders. Labourers have not been recognized by this Board as a "craft" under section 6(3) of the Act, but the general practice in the industry when executing collective agreements and the general practice of this Board when granting certificates, is to describe labourers' units using "craft-type" language, that is, by reference to "all construction labourers", as opposed to grouping the labourers into an "all employee" industrial-style bargaining unit. The recognition clause in the Labourers' provincial agreement does use "industrial-type" language when referring to employees engaged in cement finishing, waterproofing or restoration work and others "for whom the Union has bargaining rights". Stark is not engaged in cement finishing, waterproofing or restoration work. Further, it appears that the only employees the Labourers' union claims to represent vis‑a‑vis Stark are construction labourers. Accordingly, the only part of the Labourers' recognition clause which is relevant to these proceedings is that utilizing "craft-type" language wherein the union is recognized as the exclusive bargaining agent "for all construction labourers". Accordingly, on the basis of the recognition clauses, there appears not to be any conflict in the bargaining units. The U.A. holds bargaining rights for a unit of journeymen and apprentice plumbers, steamfitters, pipefitters and welders while the Labourers’ union holds bargaining rights for a unit of construction labourers.
6In seeking to bring this matter within section 91(18), Stark clearly regards as relevant the following articles in the two provincial agreements:
The U.A. Agreement
ARTICLE 9 - TRADE OR WORK JURISDICTION
9.1 The parties to this agreement recognize that it is the employer's sole responsibility to assign work. The employer agrees not to assign work contrary to existing area practices and/or existing jurisdictional awards. The reference herein to area practice and/or jurisdiction awards must be area practices and/or awards that have been accepted and practiced on projects between unions.
9.3 Subject to the conditions contained in Clauses 9.1 and 9.2 above this agreement covers the unloading, distribution and hoisting of all equipment and piping for plumbing and/or pipe fitting systems, and the installation and handling of all plumbing, pipe fitting and industrial process control systems including all hangers and supports.
ARTICLE 11 - SUB-CONTRACTING
11.1 Recognizing that the Contractor can sub-contract, no Contractor shall directly or indirectly sublet or sub-contract or otherwise transfer to any employee or any other employer not signatory to a U.A. agreement any of the work coming under the jurisdiction of this agreement.
The Labourers' Agreement
ARTICLE 2 - UNION SECURITY, WORK JURISDICTION,
ASSIGNMENT OF WORK, SUBCONTRACTING
2.01 The Employer agrees to employ only members in good standing of the Local Union specified in Article 1.03 for work covered by this Agreement.
2.02 As a condition of continuing employment, all Employees shall maintain in good standing their membership in the Local Union.
2.03 The employer acknowledges and agrees that the work covered by this Agreement is within the exclusive jurisdiction of the Union and its affiliated bargaining agents, notwithstanding the claims of any other Trade Union.
2.04 The Employer agrees that notwithstanding the claims of any other Trade Union, it shall assign exclusively to members of the Union and its affiliated bargaining agents all of the work covered by this Agreement.
2.05 The Employer agrees to engage only sub-contractors who are in contractual relations with the Union and/or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an I.C.I. General Contract, except the work described in Schedule "D" hereof.
Presumably the view of Stark is that these provisions create overlapping claims on the part of both unions to the work in dispute.
7We regard the above articles as going to the work jurisdiction of the two unions and not directly to describing the bargaining units of employees set out in the collective agreements. We recognize that the bargaining rights of a union which represents a unit described in terms of particular craft or classification of employees are circumscribed by the union's work jurisdiction. Nevertheless, there remains a distinction between the two. A craft bargaining unit sets out the craft or classification of employees the union holds bargaining rights for. Jurisdictional issues determine what work the employees involved will perform. Section 91(l8) refers only to applications to determine conflicts between the description of two bargaining units. Here there is no such conflict. To the extent there may be a conflict it is to be found in the competing work jurisdictions of the two unions and attempts to enforce those jurisdictions. That is a matter which, when the preconditions set out in the subsection are met, section 91(1) is meant to deal with. The preconditions for a complaint under section 91(1), however, have not been met in this case.
8In its request for reconsideration, Stark also submitted that the purpose of section 91 is to provide a full forum for all parties to resolve competing work claims by competing trade unions. The section however, is not worded broadly enough to cover the type of situation before us. As the Board noted in the Napev Construction Ltd. case, [1980] OLRB Rep. Feb. 247, the section addresses itself to direct work assignments from employers to persons who are or who could become employees and not contractual relations between general contractors and their subcontractors. The Board's mandate for intervening in this aspect of labour relations is limited by the specific words employed in section 91(1).
9Having regard to the above, the request for reconsideration is denied.
DECISION OF BOARD MEMBER J. WILSON;
As in the original decision, I am in disagreement with the majority report and still feel that this matter should be treated as a jurisdictional dispute.