Ontario Labour Relations Board
[1986] OLRB Rep. May 579
0477-85-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 599, Complainant, v. Armbro Materials and Construction Limited, and Labourers' International Union of North America, Local 183, Respondents, v. International Union of Operating Engineers, Local 793, Intervener #1, v. Metropolitan Toronto Sewer and Watermain Contractors Association, Intervener #2
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: Laurence C. Arnold and Charles Carter for the complainant; G. Grossman and D. Fryzuk for the respondent company; A. M. Minsky and Tom Connolly for the respondent union; Richard J. Charney for intervener #2; no one appearing for intervener #1.
DECISION OF THE BOARD; May 14, 1986
This is a complaint under section 91 of the Labour Relations Act in which the complainant, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 599 ("Local 599"), requests the Board to issue a direction with respect to the assignment of certain work.
Although the parties have not yet reached agreement concerning a detailed description of the work in dispute, it is described in Local 599's pre-hearing brief as the installation of site services at the Honda plant building project at Alliston, Ontario (the "project") from the property line to the building line, including, but not limited to, all work required on the project in connection with off-loading and placing in position of piping materials and pre-fabricated manholes, piping, piping layout, preparation of bedding in trench, laying and joining of pipe, installation of pre-fabricated manholes, backfilling to 2' above installed pipe, and all manual work in connection with trenching and backfilling including compacting. In a letter dated March 11, 1986 in which he listed the preliminary issues about which the direction of the Board is being sought at this stage of the proceedings, counsel for Local 599 indicated that "[i]n general terms the work in dispute comprises the installation of site services from the property line to the building line, save and except excavating and backfilling when performed by the use of machines." It is common ground among the parties that the work in dispute does not include any of the work that has been assigned to intervener #1 as of March 13, 1986. The respondent Armbro Materials and Construction Limited ("Armbro") assigned the work in dispute to the respondent Labourers International Union of North America, Local 183 ("Local 183").
This decision is confined to certain preliminary matters which were argued before this panel of the Board on the understanding that we would not become seized of the merits of this complaint.
The first issue to be resolved is the status of the Metropolitan Toronto Sewer and Watermain Contractors Association (the "Association") to intervene in these proceedings. Counsel for the complainant contends that the Association should not be permitted to intervene because its interest in the proceedings is too remote. The Association, Armbro, and Local 183, on the other hand, all maintain that the Association should be granted status as an intervener in these proceedings.
The Association represents a majority of the unionized sewer and watermain contractors in Board Area 8. Armbro is not a member of the Association and the Association is not an accredited employers' organization. Although there is some dispute concerning the extent to which members of the Association have been involved in the installation of site services in Board Area 18 (the Board Area in which the project is situated), it is common ground among the parties that at least two members of the Association (D'Orazio Drain and Watermain Co. Ltd., and Badner Contracting Limited) have recently performed such work in that area. Moreover, it is the position of Local 183 that the Association has granted voluntary recognition to Local 183 for Board Area 18 by virtue of Article II of the May 31, 1984 to April 30, 1986 collective agreement between the Association and a council of trade unions composed of Local 183 and Teamsters Local Union 230, which provides:
ARTICLE II - RECOGNITION
2.01 The Association on behalf of each of the Employers recognizes the Council as the collective bargaining agent for all employees of the Employers being Contractor Member companies listed in Schedule . 'C", hereto while working in Area No. 8 as specified by the Ontario Labour Relations Board as follows: Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York. the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham. save and except non-working foreman and those above the rank of non-working foreman, office and clerical staff, shop and yard employees and engineering staff, security guards and those employees covered by a subsisting agreement between the Association and the International Union of Operating Engineers, Local 793.
2.02 The parties agree to meet within three (3) months to agree upon a schedule for Board Area 18 as defined as the County of Simcoe, the District of Muskoka and the Townships of Rama, Mara and Thorah in the County of Ontario.
If the parties cannot agree, the matter will be resolved by binding arbitration.
A clause similar to Article 2.02 has been in collective agreements between those parties for approximately fifteen years. However, the meeting mentioned in that provision has never occurred, nor has the matter ever been referred to arbitration. Although counsel for the Association was not prepared to concede that Article 2.02 constituted a voluntary recognition agreement, he acknowledged that "there is obviously some sort of representational connection between the Association and Local 183", and also acknowledged that it has been the practice of members of the Association to apply the terms of that collective agreement in Board Area 18. Counsel for Local 599 advised the Board that it was his information that the provisions of that collective agreement have not been applied uniformly in their entirety by sewer and watermain contractors working in Board Area 18. However, he also indicated that his client does not dispute that sewer and watermain contractors working in Board Area 18 generally apply certain of the terms and conditions of employment contained in that collective agreement. Moreover, as noted by counsel for Local 183, where an employer bound by that collective agreement sends employees from Board Area 8 "out of town" to a location (such as Alliston) which is within a 100 kilometre radius of Toronto City Hall, the employer is required by Article 18.04 of the collective agreement to "maintain the wage rates, hours of work and all fringe benefits provided for in [the collective agreement]".
As noted in Simcoe Mechanical Contracting Limited, [1981] OLRB Rep. July 1004, at paragraph 15, "[t]he Board has for many years taken a very broad view of allowing parties to appear in [section 91] complaints". See also Gryd Construction Inc., [1975] OLRB Rep. March 231. In the circumstances of the present case, we are satisfied that the Association should be permitted to intervene since at least some of its members from time to time perform work of the type in dispute in these proceedings in Board Area 18, and since there is at least an arguable representational connection between the Association and Local 183 in respect of the performance of such work in that area.
The second preliminary issue argued before us pertains to area practice. The complainant contends that the relevant area practice to be considered in the hearing of the merits of this complaint is the practice in Board Area 18 with respect to the installation of site services on industrial, commercial and institutional ("ICI") projects. The complainant further contends that no limit should be placed on how far back in time such evidence may go. In this regard, the complainant seeks to adduce evidence "going back to the 1940's". Counsel for Local 183, on the other hand, contends that the work in dispute is sewer and watermain work, and seeks to rely on area practice in respect of such work without regard to whether it was performed in connection with a residential project, a road, an industrial plant, or an electrical power system project. It is his position that the sewers and watermains sector cuts across the other sectors listed in section 117(e) of the Act, and that work in that sector is defined by the tasks associated with sewer and watermain construction, not by the location in which it is being constructed. He further contends that it would be an abuse of the Board's process to permit evidence to be adduced concerning area practice which goes back more than five or ten years at the most.
The third preliminary issue raised by the complainant is the matter of whether Armbro and Local 183 have a collective agreement applicable to the Project. It is the complainant's position that the collective agreement purportedly observed by Armbro and Local 183 on the project is a "sewer and watermain" collective agreement which has no application to the project because the entire project, including the work in dispute, falls within the ICI sector and can only be covered by an ICI provincial agreement. Armbro and Local 183, on the other hand, contend that the work in dispute falls within the sewers and watermains sector and that their collective agreement applies to it. They further contend that the complainant's second and third preliminary issues raise matters which require a sectoral determination, pursuant to section 150 of the Act, and seek to have the Board defer the hearing of the merits of this complaint pending determination of that issue. West York Construction, [1980] OLRB Rep. Jan. 119, was cited as an example of such deferral (in the context of proceedings under section 124 of the Act). In responding to that contention, counsel for Local 599 acknowledged that a sectoral determination may be incidental to determining the applicability of the collective agreement between Armbro and Local 183 to the work in question, but argued that such determination would not be essential to these proceedings as it is not essential that there be a collective agreement in effect for there to be a jurisdictional dispute. He further submitted that if a determination must be made concerning the sector in which the work in dispute falls, it should be made in these proceedings as part of the merits of the jurisdictional complaint. He further argued that his client has not made a section 150 application and that if one is to be made, it should be made by Armbro or Local 183.
Section 150 of the Act provides:
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 the clause 117(e).
It is evident to us from the submissions of the parties and the contents of their pre-hearing briefs that in order to resolve the matters in dispute between the parties, including the second and third "preliminary issues" set forth above and the merits of this jurisdictional complaint, it will be necessary for the Board to determine whether the work in dispute is within the ICI sector, as contended by the complainant, or within the sewers and watermains sector, as contended by the respondents. We are further of the view that the issue of whether that work comes within the ICI sector should be determined under section 150 of the Act prior to the determination of any other issues relevant to this complaint, including the two aforementioned "preliminary issues". In our view, this approach is likely to prove to be the most expeditious manner of proceeding, since the determination of that matter will assist in determining the relevant area practice and the applicability of the respondents' collective agreement, and may also be of considerable assistance to the parties in resolving or narrowing this complaint.
Since the issue of whether or not the work in dispute comes within the ICI sector is integral to the merits of this complaint, we feel that no useful purpose would be served by requiring that the determination under section 150 be made the subject matter of a separate proceeding. Accordingly, we propose to adopt a procedure analogous to that adopted by the Board in West York Construction, supra. The matter will be relisted for hearing for the purpose of entertaining evidence and representations with respect to a determination under section 150 concerning whether or not the installation of site services at the Honda plant building project at Alliston, Ontario, from the property line to the building line, is within the industrial, commercial, and institutional sector of the construction industry. For that aspect of the proceedings, in addition to the existing parties, any trade union, council of trade unions, employer, or employers' organization having a direct connection with the project will have standing to participate. A Board Officer is hereby authorized to meet with the parties to assist them in identifying the parties which will have standing to participate in that aspect of the proceedings, and to report to the Board on the extent of agreement or disagreement respecting that matter. (See Ellis-Don Limited, [1985] OLRB Rep. Aug. 1204.)
Once the issue of whether that work falls within the ICI sector has been determined, the matter will be listed for a further pre-hearing conference, if that is felt to be advisable by the parties or the Board, or listed for hearing to deal with any outstanding issues pertaining to Local 599's complaint under section 91 of the Act. For that aspect of the proceedings, only the present parties will have standing to participate, unless otherwise determined by the panel of the Board hearing that aspect of the case.
This matter is referred to the Registrar for the appointment of the Board Officer for the purpose described in paragraph 10 of this decision, and for the subsequent relisting for hearing for the purpose of entertaining evidence and representations with respect to a determination of whether or not site service installation work from the property line to the building line at the Honda plant building project at Alliston, Ontario, is within the industrial, commercial and institutional sector of the construction industry. 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 that project.
This panel of the Board is not seized.