[1984] OLRB Rep. February 379
0040-83-JD The Mechanical Contractors Association of Ontario and Scope Mechanical Contracting Limited, Complainants, v. 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 its Local Union 527; Labourers International Union of North America and its Local Union 1081, and Lou Leclaire Contracting Ltd., Respondents
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. Wilson and W. F. Rutherford.
APPEARANCES: S. C. Bernardo and B. West for the complainants; S. Simpson, J. Porter and T Crystal for 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 its Local Union 527; B. Fishbein, T Connolly and K. Rimmington for Labourers International Union of North America and its Local Union 1081; M. Horan and L. Leclaire for Lou Leclaire Contracting Ltd.
DECISION OF THE BOARD; February 1, 1984
This is a complaint under section 91 of the Labour Relations Act with respect to the assignment of certain work.
For ease of reference, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, its Local 527 and the Ontario Pipe Trades Council will hereforth be referred to simply as the "U.A." Labourers International Union of North America and its Local 1081 will be referred to as the "Labourers Union". Scope Mechanical Contracting Ltd will be referred to as "Scope" and Lou Leclaire Contracting Ltd. as "Leclaire Contracting".
At the commencement of these proceedings it was the contention of the U. A. that the Board lacked jurisdiction to entertain this complaint in that at the relevant time the necessary pre-conditions for a proper complaint under section 91(1) had not been met. The Board, however, rejected this contention and ruled orally that it did have jurisdiction to entertain the complaint. What follows are the reasons for that ruling.
Scope is basically a mechanical contractor, although it does at times also act as a general contractor. Scope is bound to a provincial agreement between the U.A. and the Mechanical Contractors Association of Ontario which covers plumbers, steamfitters, pipefitters and welders. Article 11 of the agreement provides that work "coming under the jurisdiction of the agreement" shall not be sub-let to firms not signatory to a U.A. agreement. Early in 1983 Scope obtained a contract from a hospital in Owen Sound to perform some work connected with a proposed future expansion to the Hospital. The work included the installation and relocation of certain site services, sewers and watermains. Scope regarded certain of the work on the project as work coming within the jurisdiction of the U.A. and accordingly directly employed a number of U.A. plumbers to perform it. Scope sub-contracted the remainder of the work to Leclaire Contracting. Included in the sub-contract was the relocation of a number of storm and sanitary sewers beyond the first manhole from the Hospital building. Although Scope did not regard this work as coming within the jurisdiction of the U. A., Mr. Jack Porter, the business manager of U.A. Local 527, did. In giving his testimony Mr. Porter acknowledged that it is not uncommon for construction labourers to perform the type of work in question.
Initially, Mr. Porter had been of the view that a relationship existed between Scope and Leclaire Contracting such that the two constituted a single employer. Doubtless this view arose from the fact that Leclaire Contracting rents office space from Scope in the Town of Markham. In these proceedings Mr. Lou Leclaire, the owner of Leclaire Contracting, indicated that there was no direct linkage between his firm and Scope. Mr. Leclaire testified that in the preceding year Leclaire Contracting had performed about one and a quarter million dollars worth of work, of which less than twenty per cent had come from Scope. Section 1(4) of the Act empowers the Board to treat associated or related activities or businesses that are being carried on under common control or direction as a single employer. In these proceedings, however, counsel for the U.A. expressly stated that he was not relying on section 1(4).
Leclaire Contracting started working on the Hospital project on or about March 7, 1983. It employed members of the Labourers' Union to perform the work in question. On or about March 9, 1983 Mr. Porter drove to Markham and met with Mr. Bill West, the president of Scope and Mr. Lou Leclaire, the president of Leclaire Contracting. Mr. Porter met first with Mr. Leclaire. Mr. Porter indicated to Mr. Leclaire that he regarded the work in question as plumbers work, and that because (in his view) Scope and Leclaire Contracting were one employer, Leclaire Contracting was bound to the U.A. provincial agreement. Mr. Leclaire testified that Mr. Porter told him that he wanted Leclaire Contracting to employ U. A. plumbers to perform the work in question. Mr. Porter denied that he had told Mr. Leclaire to hire U. A. employees, although he did indicate that he may have advised Mr. Leclaire that he had to sign a collective agreement with the U. A. In cross-examination Mr. Porter agreed with the suggestion that if Mr. Leclaire had agreed to sign an agreement with the U.A. and hire U.A. members to perform the work, that would have ended the matter.
Before leaving Mr. Leclaire's office, Mr. Porter handed Mr. Leclaire a grievance. The grievance read, in part, as follows:
"NAME OF UNION REPRESENTATIVE
(Print & Sign) Jack Porter
"Jack Porter"
LOCATION OF WORK COVERED BY THIS REPORT
Dr. Phillips Mackinnon Hospital,
R. R. #6 Owen Sound, Ontario. N4K 5N8
NAME OF CONTRACTOR
Lou Leclair Contracting Ltd. 1271
Dennison Unionville, Ontario. L3R 4B5
NAME(S) OF GRIEVING EMPLOYEE(S)
Union Local 527 96 Union Street East,
Waterloo. Ontario. N2J 1C2
DATE March 9, 1983
a) Nature of Grievance and Date of Occurrence: Tuesday, March 8, 1983. Because Lou Leclair Contracting Ltd. is related to Scope Mechanical Contracting Ltd., therefore Lou Leclair Contracting Ltd. is in violation of the provincial agreement for doing work contrary to the provincial agreement.
b) Remedy or Correction Requested: U.A. members to be hired immediately to replace other workers performing the work under U.A. jurisdiction. Also, that the contractor pay to the union all monies lost due to others performing the work. In addition, we ask for all legal cost to be borne by the contractor."
On March 15, 1983 the U. A. referred this grievance to the Board for determination pursuant to section 124 of the Act (File No. 2608-82-M). The matter came on for hearing before the Board on March 29, 1983. At the hearing the U. A. requested and obtained leave from the Board to withdraw the referral.
- After leaving Mr. Leclaire's office, Mr. Porter went to see Mr. West, the president of Scope. In a discussion about the work Mr. Porter contended it came within the jurisdiction of the U.A., to which Mr. West replied that prevailing practice was to have the work performed by construction labourers. Mr. Porter handed Mr. West a grievance, the relevant portions of which stated:
"Nature of Grievance and Date of Occurrence: Tuesday, March 8, 1983. That Scope Mechanical Contracting Ltd. is in violation of the provincial agreement article II — Sub-contracting.
b) Remedy or Correction Requested: U. A. Members to be hired immediately to replace other workers performing the work under U.A. jurisdiction. Also, that the contractor pay to the union all monies lost due to others performing the work. In addition, we ask for all legal cost to be borne by the contractor."
This grievance was referred to the Board pursuant to section 124 of the Act on March 15, 1983 (File No. 2609-83-M). At a hearing on July 20, 1983 the Board ruled that it would defer a consideration of the merits of the grievance until a conclusion of these proceedings under section 91.
- As already indicated, the U. A. submits that the facts of this case do not meet the pre-conditions for a work assignment dispute set out in section 91(1) of the Act. Section 91(1) provides as follows:
"The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiting an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work."
For section 91(1) to apply in this case, it must be because the U.A. required an employer to assign work to members of the U.A. rather than to construction labourers belonging to the Labourers Union. In Napev Construction Ltd. [1980] OLRB Rep. Feb. 247, the Board indicated that a general contractor who has sub-let work cannot be viewed as the employer of the employees performing the work, and accordingly, a union's approach to a general contractor alleging a violation of the sub-contracting provision in a collective agreement will not, by itself, give rise to work assignment dispute within the meaning of section 9 1(1). Accordingly, it would appear that neither Mr. Porter's discussion with Mr. West nor the U.A. grievance against Scope was sufficient to create a work assignment dispute within the meaning of section 91(1).
The situation with respect to Leclaire Contracting, however, was quite different. Leclaire Contracting was the employer of the employees performing the work. Accordingly, if the U.A. required that Leclaire Contracting assign the work in dispute to U.A. members instead of construction labourers, the requirements for a complaint under section 91(1) would have been met. At the hearing, counsel for the U.A. contended that at no point had the U.A. requested the work from Leclaire Contracting. As for the grievance against Leclaire Contracting, counsel contended that it should not be given any weight in that it had been based on the false assumption that Leclaire Contracting was bound to the U.A. provincial agreement. We are unable to accept this contention. Even if we were to accept that Mr. Porter did not verbally state to Mr. Leclaire that his firm should employ U.A. members, the U.A. grievance against Leclaire Contracting certainly did so in no uncertain terms. Indeed, the grievance expressly sought to have "U.A. members. . .hired immediately to replace other workers performing the work under U. A. jurisdiction". The fact that the demand may have been based on a false premise cannot in our view alter the fact that the demand was made.
Having regard to the above, the Board was satisfied at the hearing into this matter that the U.A. had required that Leclaire Contracting, an employer, assign work to persons in one trade union, the U. A., rather than to persons in another trade union, namely, the Labourers Union. Accordingly, the Board was satisfied, and so ruled, that the pre-conditions for a complaint under section 91(1) had been met and that the Board had jurisdiction to inquire into the complaint.