[1982] OLRB Rep. August 1143
0050-82-JD The International Union of Bricklayers and Allied Craftsmen and its Local 10; and The Ontario Provincial Conference of The International Union of Bricklayers and Allied Craftsmen, Complainant, v. The International Brotherhood of Painters and Allied Trades; the Ontario Council of the Int'l Brotherhood of Painters and Allied Trades; and The International Brotherhood of Painters and Allied Trades, Local 1891 and Brunswick Drywall Limited, Respondents.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Lewis Gottheil and Mike Quesnel for the applicant; Laurence C. Arnold and Aranado Collafracchesci for the respondent unions.
DECISION OF THE BOARD; August 17, 1982
This is a jurisdictional dispute complaint filed pursuant to section 91 of the Labour Relations Act. The complainant (hereinafter "the Bricklayers") requests, among other things, a declaration that drywall taping in relation to the construction of a shopping mall known as the Cataraqui Town Centre, at the intersection of Highway 2 and Highway 38 in the County of Frontenac, is within its exclusive trade jurisdiction. The application for a declaration is opposed by The International Brotherhood of Painters and Allied Trades and its local 1891 (hereinafter "the Painters").
The facts are not in dispute. Brunswick Drywall Limited is a New Brunswick based company specializing in the supply and installation of drywall. It apparently has a contractual relationship with the Robert Simpson Co. Ltd., whereby it does the installation of drywall in the renovation and the new construction of Simpson's department stores. Brunswick Drywall, in turn, has a collective agreement with the Painters, having signed a voluntary recognition agreement tying it into the Painter's provincial collective agreement on December 29, 1980. Brunswick commenced operations in Ontario at or about that time.
In January of 1982, in anticipation of work to be performed at the Catarqui Town Centre, Brunswick was approached by the Bricklayers concerning the assignments of drywall taping on the Simpson's phase of the mall. The general contractor of the project, Jackson Lewis Co. Ltd. is party to a collective agreement with the Bricklayers, Article 1 of which forbids the subcontracting of work to employers who are not bound by the Bricklayers' provincial agreement. Apparently on the instruction of the general contractor Brunswick agreed to employ Bricklayers, and it is common ground that the drywall taping was being and is being performed by the Bricklayers, with the exception of one employee, a Painter, who worked on the project on the basis of a permit fee paid to the Bricklayers. With that accommodation reached, the Bricklayers did not insist on their collective agreement being signed by Brunswick, and no collective agreement was entered into.
It is also common ground that Brunswick has operated in Ontario only since late 1980 and that it has, with the exception of the Cataraqui project, exclusively employed members of the Painters local 1891 in drywall taping. The constitutional jurisdiction of local 1891 is province wide. The jurisdiction of local 10, on the other hand, is restricted to eastern Ontario, and more particularly the Kingston area. It extends roughly from Brockville to Napanee, being described in the Bricklayers constitution as follows:
Local Union No. 10 — Kingston
The Counties of Lennox and Addington, except the Township of Richmond, the County of Frontenac, the Township of Leeds in the County of Leeds, the Township of Front of Escott, Front of Yonge, and Elizabethtown in the County of Leeds and the Township of Augusta in
the County of Grenville.
The Painters responded to the assignment of work by Brunswick to the Bricklayers by a letter to the employer dated January 25, 1982. It asserted that any such assignment was contrary to the collective agreement obligations of Brunswick Drywall Ltd.
A jurisdictional conflict between the Bricklayers and the Painters also flared up in relation to drywall taping to be performed on the same project for another subcontractor, Ottawa G.S.B. Construction Company. That led to an application before the Board and resulted in an interim order, dated January 19, 1982, directing the assignment of work to the Bricklayers, (Board File No. 2148-81-JD).
The delineation of work jurisdiction in respect of drywall taping has been reviewed in previous Board decisions. In a section 89 complaint filed originally in relation to the instant dispute (Board File No. 2576-81-U, dated May 20, 1982, unreported) the Board concluded that the issue was in essence jurisdictional, rather than an unfair labour practice. In so doing it observed:
Prior to the mid-1960's most interior walls were constructed of metal lath to which were applied two coats of plaster. However, since that time drywall has come to largely replace lath and plaster. Once in place, drywall can be joined with either plaster or tape, with tape being by far the more popular method. Having regard to the nature of the process, it is perhaps not surprising that very early in the use of drywall a jurisdictional rivalry over the taping work developed between the Painters' union and certain other unions, most notably the Operative Plasterers and Cement Masons International Association ("the Plasterers' union"). We believe we can take notice of the fact that in many, but not all, areas of the province; it has become the accepted practice to assign drywall typing work to members of the Painters’ union.
Although the rivalry for drywall taping work primarily involved the Painters' and Plasterers' unions, in certain counties in Eastern Ontario the work has been performed by members of the International Union of Bricklayers and Allied Craftsmen ("the Bricklayers' union"). The involvement of the Bricklayers' union arises out of the fact that the union has traditionally represented a number of plasterers, to the extent of operating local hiring halls for plasterers. The Bricklayers' provincial agreement purports to claim taping work as part of the jurisdiction of plasterers who belong to the union. We believe we can take notice of the fact that the Bricklayers' union has been particularly active in the drywall taping field in the Kingston area. Indeed, at the hearing, the representative of the Bricklayers' union claimed that in the Kingston area the prevailing practice is to assign drywall taping work to members of the Bricklayers' union.
e.g
We are satisfied that this matter arises from the fact that Brunswick has assigned drywall taping work to members of the Bricklayers~ union rather than to members of the Painters' union. Given the fact that the job is in the Kingston area, there is nothing in the assignment itself which might indicate to us that Brunswick was acting out of anti-union considerations or out of an attempt to deny that it is bound to the Painters' provincial agreement. Rather, the issue appears to be whether Brunswick, in the Kingston area, is bound to honour the jurisdictional claim of the Painters' union to drywall taping work, a claim which is supported by the provisions of the Painters' provincial agreement. In our view, this is a matter which should not be dealt with on the basis of an alleged violation of the Labour Re/at ions Act, but rather either under the work assignment dispute mechanism set out in section 91 of the Act or, arguably, as an alleged violation of the Painters' provincial agreement. In this regard, we note that a Board direction under section 91 overrides the provisions of a collective agreement.
In the instant case the parties do not advance skill and ability or efficiency as a basis to distinguish between their respective jurisdictional claims. They rely in part on the collective bargaining relationships and, more substantially, on area practice.
Counsel for the Painters also relies on a number of other elements. Principally he stresses the anomalous nature of the jurisdictional claim to drywall taping advanced by local 10 of the Bricklayers. It is common ground that the Bricklayers do not assert jurisdiction over drywall taping in any area of Ontario other than in the Kingston area serviced by Local 10. He submits that the references to drywall taping in the Bricklayers' collective agreement appear as a brief afterthought and that the Bricklayers' constitution does not make specific reference to drywall taping. He views the claim of the Bricklayers based on a reference in the Constitution of the Ontario Provincial Conference to "substitutes" in the plastering section of its trade jurisdiction article as strained and artificial as applied to drywall taping.
In support of his argument that the Bricklayers have relinquished any claim to drywall taping, counsel for the Painters adduced in evidence an agreement made between the internationals of the Bricklayers and the Painters dated November 29, 1961. By the terms of that understanding it was apparently resolved that the taping of drywall surfaces would be in the exclusive jurisdiction of the Painters. Reference was also made to a decision of the Impartial Jurisdictional Disputes Board in Washington D.C. On March 1, 1978 that Board issued a decision confirming the jurisdiction of the Painters over the painting and taping of drywall surfaces.
Agreements made internationally between unions are a factor that the Board may consider in the hearing of a jurisdictional dispute. So are the determinations of other tribunals. These are factors, however, which cannot be automatically determinative; they must be weighed in relation to all other factors, including considerations of provincial and area practice. Agreements and rulings made elsewhere do not necessarily reflect the labour relations realities in Ontario nor necessarily point the way to industrial peace and stability in the construction industry in this province. Problems particular to this province or parts of it must be considered on their own merits, with a view to fashioning jurisdictional orders that will minimize trade disputes and promote industrial peace in Ontario.
In the instant case area practice is of considerable significance. The evidence establishes that with a few minor exceptions that are not material, for many years the Bricklayers have performed drywall taping almost exclusively in the Kingston area, including Board area 29. It appears beyond contradiction that some eighty percent of the drywall installation in the area is performed by two contractors, Kingston Lath and Plaster Ltd. and Bertoia Lathing Ltd. Each of them has used the Bricklayers exclusively in drywall taping, having collective agreement relationships extending back to 1963 and 1974 respectively. While it appears that some non-union drywall work has been done in recent years in the ICI sector in Kingston, there is no evidence of any other union having done such work. While it is true, as counsel for the Painters points out, that the two contractors who dominate the drywall trade in Kingston are not large entrepreneurs, the evidence of his own witnesses confirms that in areas like Kingston such work is generally done by small local contractors. In these circumstances we do not see the size of the contractors as diminishing the weight to be given to the Bricklayers claim in respect of local area practice.
The evidence confirms that drywall taping has been done efficiently and virtually without challenge by the Bricklayers in the Kingston area for years. There seems to the Board to be little reason to disturb what appears to be a successful and long lived work jurisdiction the exercise of which has caused no industrial unrest. Counsel for the Painters suggested that a decision favoring the Bricklayers could produce a negative result in the form of a backlash against the Bricklayers if they should work, as they have on occasion, for Kingston Lath and Plaster Ltd. and Bertoia in the Belleville area. In this regard the Board is impressed by the undertaking given in evidence by Mr. Quesnel on behalf of the Bricklayers. He categorically stated that Local 10 does not seek to expand its territorial jurisdiction to Belleville onto other communities outside its present constitutional jurisdiction. In the light of that assertion, which the Board includes in this decision as a matter of record, the likelihood of future disputes seems unlikely.
We are agreed, however, with counsel for the Painters that the remedy in this complaint should be limited to the job location that gave rise to the dispute. While this decision should not be of any less value to the parties in the future, we do not see any reason to depart from the Board's general practice of confining the remedy in a jurisdictional dispute to the work immediately in issue.
For the foregoing reasons the Board hereby confirms the assignment of the work in dispute, being drywall taping, which includes the taping and jointing of all points, nail holes, and bruises on drywall and wallboard, through the use of tape and gypsum compound, by Brunswick Drywall Limited at the Cataraqui Town Centre to the International Union of Bricklayers and Allied Craftsmen and its Local 10.