[1985] OLRB Rep. August 1204

0846-85-M Labourers' International Union of North America, Local 183, Applicant, v. Ellis-Don Limited, Respondent

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members R. Wilson and J. Wilson.

APPEARANCES: B. Fishbein and R. Lotito for the applicant; B. W. Binning, Brian Foote and Leonard Finegold for the respondent; S. Ursel and Stan Arsenault for International Association of Bridge, Structural & Ornamental Ironworkers, Local 721; Douglas J. Wray and Frank Rimes for Toronto District Council of the United Brotherhood of Carpenters and Joiners of America.

DECISION OF THE BOARD; August 15, 1985

1. The applicant has referred a grievance in the construction industry concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act.

2. The applicant, Labourers' International Union of North America, Local 183 ("the union") alleges that the respondent Ellis-Don Limited ("Ellis-Don") has subcontracted work to companies which are not in contractual relations with the union or has refused to subcontract work to companies which are in contractual relations with the union. The grievance which has been referred to the Board describes the work as "... forming, reinforcing steel placing, concrete placing and finishing ..." at Ellis-Don's project at Yonge Street and Hendon Avenue in the City of North York. The relief sought by the union includes, amongst other things, a direction that Ellis-Don sublet forming, reinforcing steel placing, concrete placing and finishing work only to companies in contractual relations with the union and damages by reason of the alleged violation of the collective agreement between them. It is uncontested that Ellis-Don first entered into a collective agreement with the union in 1983 and was bound to a collective agreement (hereinafter referred to as "the Agreement") at the making of this application.

3. The reply filed by the respondent through its solicitors contends that the Board is without jurisdiction to entertain this application because the work in question is work in the industrial, commercial and institutional (ICI) sector of the construction industry and, therefore, cannot be work coming within the scope of the agreement. In support of its contention, the reply states that the project is not in the residential sector; Ellis-Don is bound to provincial agreements pertaining to the ICI sector respecting labourers, carpenters and rodmen; and, accordingly, Ellis-Don is applying to the Board pursuant to section 150 of the Act for a determination of whether the work in question is work within the ICI sector of the construction industry.

4. The International Association of Bridge, Structural and Ornamental Ironworkers, Local 721 ("the Ironworkers") has filed an Intervention, Construction Industry, requesting that the Board adjourn the application in order to allow the Ironworkers to file a complaint under section 9 1(1) of the Act. In so doing, the Ironworkers are alleging that the root issue in the grievance is a dispute over the assignment of the work. In support of its request, the Ironworkers' intervention states that the Ironworkers and Ellis-Don are bound to the provincial agreement pertaining to the ICI sector with respect to rodmen; the work in question, that is the placing of reinforcing steels has been subcontracted by Ellis-Don pursuant to the subcontracting provisions of the rodmen' s provincial agreement to companies in contractual relations with the Ironworkers; and the union is claiming that work should have been sublet to contractors in contractual relations with it.

5. The solicitors for the Toronto District Council of the United Brotherhood of Carpenters and Joiners of America ("the Carpenters") also have advised the Board that the Carpenters wish to intervene in this matter on the grounds that the Board should, preliminary to hearing the application, make a determination under section 150 of the Act.

6. At the hearing into the application, as a result of the foregoing pleadings, the Board heard the full submissions of the parties with respect to the issues raised by those pleadings, particularly whether the Board should first make a determination under section 150 of the Act before hearing the application on its merits. The conclusions set out hereunder are made by the Board having reviewed and considered those submissions.

7. The project involved with this application is comprised of two office towers, one of which has been built and the other which is still to be built, some low-rise buildings which include self-contained apartments and several levels of underground parking. That much is common ground amongst the parties. Counsel for the applicant told the Board that all floors of the low-rise buildings are to be occupied by self-contained apartment units, with no provision for commercial space. The submissions of counsel for Ellis-Don and for the Carpenters make it unclear whether there are three or four stories to the low-rise buildings. They are agreed that the first floor is designated for commercial use. The only question is whether there are two or three floors of apartments. A similar uncertainty exists with respect to the underground parking facilities but there are between three and five levels of underground parking under the entire project. It would appear that the two office towers and the low-rise buildings will occupy a common site.

8. The clauses in the Agreement on which the union has based the grievance are:

ARTICLE 1 - RECOGNITION - CO-OPERATION

• CONTRACTING OUT

1.01 The Employer recognizes the Union as the Collective Bargaining Agent for all of its own construction employees, (whose classifications fall into a category listed on Schedule "N' attached hereto), engaged in the on-site construction of all types of apartment buildings only and their natural amenities, and without restricting the generality of the foregoing, and for the purposes of clarification, it is agreed that the following building types shall be deemed to be an apartment building for the purposes of this Agreement;

(i) all Public Housing, Co-operatives, Senior Citizens' and Student Housing;

(ii) a stacked row dwelling, which means a building divided vertically into three or more dwelling units and horizontally into four or more dwelling units, each having its own private entrance;

(iii) a stacked structure which is four storeys or more above grade;

(iv) notwithstanding items 1.01(i) and 1 .01(u), a traditional three-storey building with common corridors, stairwells, and parking;

(v) a separate structure which includes space designed to be used for commercial, retail and/or office purposes of not more than 50 per cent (50%) of the gross floor area (excluding parking and recreational facilities);

(vi) those sections of a multi-towered single complex on a common podium which are divided vertically by lines relating directly to commercial and residential sections; then each section shall be built according to its base use.

(vii) a separate residential structure(s) which forms part of a single project with an apartment building(s) under a common deed, architectural design and building permit.

(viii) structures used for sleeping accommodation and/or occupancies in which persons, because of age, mental or physical limitations, require special care or treatment; and all facilities connected therewith.

(ix) the other paragraphs of this Article 1.01 notwithstanding the term 'apartment building' when used in this Collective Agreement shall not include low rise housing as that term is defined in the Collective Agreement between the Toronto Housing Labour Bureau and the Labourers' International Union of North America, Local 183.

1.03 Should the Employer sublet the following work:

(ii) Concrete Superstructure;

• forming

• reinforcing steel placing

• concrete placing and finishing

then such work shall be sublet to companies in contractual relations with the Union.

9. The union opposes the Ironworkers' and Carpenters' attempts to intervene and the requests of the respondent, Ironworkers and Carpenters to defer hearing the grievance on its merits until the Board has made a determination under section 150 of the Act or decided a work assignment dispute under section 91. The union takes the position that its grievance involves an interpretation of the Agreement for purposes of determining whether the work in question is encompassed by the description of apartment building construction in clause 1.01 and, if it is, whether the contractor to whom Ellis-Don let the work is in a contractual relationship with the union. Since that is a private matter between Ellis-Don and the union as parties to the agreement, the Ironworkers and Carpenters have no direct, legal interest and therefore no status to intervene in the grievance. Even if the Board were disposed to permit the Ironworkers and Carpenters to intervene for the limited purpose of dealing with the preliminary issue, counsel submits that the Board should not defer proceeding on the merits of the grievance on three grounds. First, the purpose of section 124 of the Act is to expedite the resolution of grievances in the construction industry and they should not be subjected to delays caused by protracted hearings under section 150, particularly where the Board has found the work in question to be work in the residential sector when a similar question was litigated before the Board by the union. Second, the Board has previously held that the subcontracting of work does not constitute an assignment of work, therefore there is no basis for the Ironworkers' claim that the grievance is an attempt to disguise the existence of a work assignment dispute. Third, Ellis-Don should be estopped from raising the defence that the Agreement contravenes the Act if in fact the work in question is work in the ICI sector and is encompassed by clause 1.01 of the Agreement because by advancing that defence Ellis-Don would be seeking to rely on its own unlawful conduct of signing a collective agreement which contravenes the Act.

10. In the Board's view, the circumstances of this case are not proper ones, in which to apply estoppel. If clause 1.01 of the Agreement covers work in the ICI sector and if, as asserted, both the union and Ellis-Don are bound by the Labourers provincial agreement, the Agreement would be unlawful to the extent that it covered work in the ICI sector. Since the Agreement cannot be binding in law to the extent that it purports to apply to the ICI sector, it cannot have the effect of exerting estoppel against the Act. Furthermore, to the extent that the Agreement is unlawful, the union is a party along with Ellis-Don to that illegality. It would seem to the Board, therefore, that the union would be seeking to rely on its own unlawful act by relying on clause 1.01 in raising the defence of estoppel. Therefore Ellis-Don is not estopped from raising the potential illegality of the Agreement as a ground for seeking to have the Board make a determination under section 150 of the Act as to whether the work at issue is work in the ICI sector.

11. Section 150 provides as follows:

The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e).

12. There can be no question that Ellis-Don has status to request the Board to make a determination under section 150, so it is immaterial whether the Ironworkers or the Carpenters have status to do so. Nonetheless, the Board finds little merit in the union's claim that the Ironworkers and Carpenters do not have even limited status in these proceedings to raise a question under section 150 of whether the work claimed by the union to be the subject matter of its grievance is work within the ICI sector. The work in question is concrete forming construction. Ellis-Don, the Ironworkers and Carpenters all assert that Ellis-Don is bound together with them to the provincial agreements for rodmen and carpenters, respectively. The Ironworkers and Carpenters assert further that the reinforcing steel work and carpentry work associated with forming has been done on the project to date by contractors bound to and performing such work under their respective provincial agreements, which agreements legitimately pertain to work in the ICI sector. The union was in precisely the same position as the Ironworkers and Carpenters when it sought successfully to intervene in a section 124 referral brought by the Carpenters in West York Construction, [1980] OLRB Rep. Jan. 119 (hereinafter referred to as West York #1). The union was seeking also an adjournment of the grievance until it could file a complaint respecting a work assignment dispute under what is now section 91 of the Act. In that case, as in the instant one, it was the respondent who was requesting that the Board make a determination under section 150 (then section 135). In West York #1, the Carpenters as applicant and the union as intervener acknowledged to the Board that it would have to decide whether the work in question was work in the ICI sector. They did not want the Board to make the decision in a section 150 proceeding, however. The Carpenters wanted the determination made in the context of its section 124 proceeding and the union wanted it made in the context of a proceeding under section 91 of the Act. The Board, in concluding that the case was an appropriate one for making a determination under section 150 stated:

In these circumstances, we are satisfied that it would be appropriate to accede to the respondent's request and determine the issue of whether the work in question comes within the industrial, commercial institutional sector pursuant to the provisions of section [150].

9. Because of the particular issues raised by this case, we are of the view that the issue of whether the work comes within the industrial, commercial and institutional sector should be determined under section [150] of the Act prior to a consideration of any other issues relevant to the grievance and before considering the section 81 complaint in File No. 1661-79-JD. In our view, this approach is likely to prove to be the most expeditious manner of proceeding.

10. By the time the Board dealt with the merits of that case under section 150, it had been consolidated with a similar case involving a different contractor as a respondent to another grievance filed by the Carpenters in which the union successfully intervened on similar grounds to those in the West York #1 case. The union was relying in both cases on collective agreement language very similar to that of clause 1.01 of the Agreement. The work involved was forming work and the projects were mixed-use, residential and commercial. The Board ultimately found the work on both projects to be work in the residential sector. The fact situation confronting the Board was such that the Board was prepared to give considerable weight to evidence that, in the Toronto area, the parties had a practice of treating certain kinds of mixed-use structures as being either in the ICI or residential sectors based on a majority use test. It is clear from the Board's decision in West York Construction Ltd., [1983] OLRB Rep. Dec. 2132 (hereinafter West York #2) that the majority test was only persuasive in the particular fact situation of that case and that the Board was under no obligation to follow that test in other fact situations. The union was referring to the West York #2 decision when it claimed that it had already successfully litigated before the Board the work in question in the instant case by obtaining a declaration that the work was in the residential sector.

11. The Board is not convinced that the determination in West York #2 would result in a similar determination in this case. It is at least arguable, as the respondents, the Ironworkers and Carpenters contend, were the Board to give considerable weight to the majority use test in the circumstances of this case, it might conclude that the work was in the ICI sector. Furthermore, West York #2 was concerned with work on a project coming within item (v) of clause 1.01 of the Agreement. The respondent's submissions imply that, in order for the union to be successful, it would have to establish the project in the instant case to be under item (vi) of clause 1.01. The Board has not previously dealt with the status of that kind of work in a section 150 determination. The Board has previously indicated its willingness to make a determination under section 150 of the Act in circumstances where the status of the work in question has not previously been litigated before the Board. In that respect see the Board's decision in Sword Contracting Limited, [19851 OLRB Rep. May 743.

12. Section 146(2) of the Act prohibits the union and Ellis-Don from ..... concluding any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement ...." Ellis-Don is said to be bound to the labourers, rodmen and carpenters provincial agreements to which the union, the Ironworkers and Carpenters are bound respectively and which are said to cover concrete forming work in the ICI sector. Therefore, to the extent that clause 1.01 of the agreement encompasses such work, the union and Ellis-Don might be contravening section 146(2) to the extent of that overlap.

13. Having regard to the potential illegality of the agreement and to the similarity between this case and West York #1 in the circumstances under which the requests arose for a determination to be made under section 150, the Board is satisfied for the same reasons given in West York #1 that this is an appropriate case in which to grant the respondent's request for a determination under section 150 of the Act. The question to be determined is whether forming, reinforcing steel placing, concrete placing and finishing work at Ellis-Don's project is work in the ICI sector of the construction industry. The Board is not persuaded by the union's submissions that in making such a determination, the Board will simply be re-litigating the status of work already found by the Board to be work in the residential sector.

14. The issue of whether the work comes within the ICI sector is central to the merits of the union's grievance. That was the situation in West York #1. Therefore the Board proposes to adopt a procedure similar to the one set out in paragraph 10 of that decision. It will relist this matter for hearing for the purpose of receiving the evidence and representations with respect of whether the work of forming, reinforcing steel placing, concrete placing and finishing at Ellis-Don's project at Yonge Street and Hendon Avenue in the City of North York comes within the ICI sector of the construction industry. The parties who will have status to present evidence and representations on this issue will be any trade union, council of trade unions, employer or employers' organizations having a direct connection with the project. A Board Officer is authorized to meet with the parties to assist them with identifying those parties which will have standing to participate in the proceedings and to report to the Board on the extent of agreement or disagreement respecting which parties should have standing. See the Board's decision in Harbridge and Cross Ltd., [1979] OLRB Rep. April 313.

15. When the issue of whether the work in question is work within the ICI sector has been determined, this application will be listed again for hearing with respect to the remaining issues raised by the grievance. At that stage, the parties to the proceedings will be the Labourers' International Union of North America, Local 183 and Ellis-Don Limited.

16. This matter is referred to the Registrar for the appointment of the Board Officer and for listing for hearing, in each case for the purpose referred to in paragraph 17. Notices of Hearing are to be sent to all trade unions, councils of trade unions, employers and employers' organizations which are agreed by the parties or found by the Board to have a direct connection with Ellis-Don's project at Yonge Street and Hendon Avenue in the City of North York.