United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463 v. Labourers' International Union of North America, Local 597

[1987] OLRB Rep. January 137

3472-84-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, Applicant, v. Labourers' International Union of North America, Local 597 and Steen Con­tractors Limited, Respondents, v. Milne and Nicholls/Vanbots Joint Venture, Intervener

BEFORE: Harry Freedman, Vice-Chairman and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES: Laurence C. Arnold for the applicant; S. B. D. Wahl, T. Connolly and D. Little for the respondent union; S. C. Bernardo and Jim Thomson for the intervener and Ontario Gen­eral Contractors Association; Allan Jones and Sandy Cochran for Metropolitan Toronto Sewer and Watermain Contractors Association; no one appearing for the respondent Steen Contractors Limited.

DECISION OF THE BOARD; January 9, 1987

1. This is a complaint concerning the assignment of certain work relating to the installation of storm sewers and catch basins within the property lines and outside the perimeter of the build­ing at the General Motors Stamping Plant Construction Project in Oshawa.

2. Counsel for Local 463 submits that the hearing and determination of the merits of the dispute be deferred until the Board determines, pursuant to section 150 of the Labour Relation Act, into which sector of the construction industry the work in dispute falls. The other parties oppose that submission and urge the Board to deal with the merits of the complaint, and, if necessary, the sector issue as one of the issues to be resolved in determining the merits of the complaint.

3. Milne and Nicholls/Vanbots Joint Venture is the general contractor at the General Motors project. The mechanical subcontract was awarded to Steen Contractors Ltd. Steen Contractors Ltd. sub-contracted some of its work, including the work in dispute to Valentine Enterprises Contracting. For purposes of this preliminary motion, the parties agreed that Steen Contrac­tors Ltd. and Milne and Nicholls/Vanbots Joint Venture are bound to the relevant Provincial Agreement to which Local 597 is bound. Valentine Enterprises Contracting and Local 597 are bound to a collective agreement that applies to the sewers and watermains sector of the construc­tion industry. Steen Contractors Limited is also bound by the provincial agreement between the Mechanical Contractors Association of Ontario and the Ontario Pipe Trades Council to which Local 463 is bound.

4. We agree with the submissions of counsel for Local 463 that the determination of the sector of the construction industry into which the work in dispute comes is an important issue in this proceeding. While the sector determination may not be as significant to Local 597 because at least one of the collective agreements by which Local 597 is bound applies at least to either the sewers and watermains sector or the industrial, commercial and institutional sector, it is particularly significant to Local 463 since Local 463 may not be bound to a collective agreement applic­able to the sewers and watermains sector with any of the parties to this proceeding.

5. Additionally, the determination of the sector issue may well also affect the type and relevance of evidence that the parties might wish to call with respect to the merits of the work assignment complaint.

6. The Board may determine into which sector of the construction industry that the work in dispute falls pursuant to section 150 of the Labour Relations Act. While that type of determination may be characterized as a collateral issue in a Board proceeding (see, for example, Ecodyne Ltd.,[1979] OLRB Rep. July 629) the Board has recognized that the importance of a sector deter­mination goes beyond the immediate parties to the proceeding in which the sector issue is raised.

7. In Harbridge & Cross Ltd., [1979] OLRB Rep. April 313, the Board made it clear that as a procedural matter, a sector determination could involve a large number of parties. The Board wrote at page 314:

"Section 135 [now section 150] clearly indicates who may make an application and refers to 'work to be performed by employees'. It appears to the Board that the project with respect to which any question arises either with reference to present or future work must form the point of departure in determining which persons have status to participate in a proceeding under section 135.

In our view, in order for a person to have standing to participate in a proceeding under section 135 such a person is required to have a direct connection with the project wherein the question arises or will arise. A direct connection is possessed by a person who employs employees who are working or who will work on the project; trade unions or counsel of trade unions which have bargaining rights for employees who are working or who will work on the project; and employer bargaining agencies, employee bargaining agencies and affiliated bargaining agents which repre­sent the employers, trade unions or counsel of trade unions which have bargaining rights for employees who are working or who will work on the project; and employer bargaining agencies, employee bargaining agencies and affiliated bargaining agents which represent the employers, trade unions or employees previously referred to in this paragraph."

8. Where a sector determination is material to the proceeding in which it has arisen, the Board has, in the past, deferred consideration of the merits of the dispute until the sector determination is made. The Board has also applied the reasoning of Harbridge & Cross Ltd., supra, to determine the standing of parties in a sector determination. See Harbridge & Cross Ltd., supra, West York Construction Ltd., [1980] OLRB Report Jan. 119; Sword Contracting Ltd., [1985] OLRB Rep. May 743; Ellis Don Ltd., [1985] OLRB Rep. May 743; Ellis Don Ltd., [1985] OLRB Rep. Aug. 1204; and Armbro Materials Ltd., [1986] OLRB Rep. May 579.

9. Counsel for Local 463 and counsel for the intervener, in addition to submitting that the sector determination is not particularly relevant because of the collective bargaining relationships that the Labourers have, also submitted that the sector issue was disposed of by the Board's decision in Metropolitan Toronto Sewer and Watermain Contractors Association, [1986] OLRB Rep. Oct. 1362. In establishing general guidelines for determining which employers should be included on the list of employers, in that accreditation proceeding, the Board stated:

'Second, as a general rule, the Board will consider employers of employees for whom the res­pondent has bargaining rights in Board area #8 in the sewers and watermains sector who are performing the following work in Board area #8 to be doing work coming within the unit of employers found by the Board to be appropriate for collective bargaining:

The installation of main and/or lateral sewers and their appurtenances for the collec­tion and transportation of sewage and storm water and main and/or lateral water­mains and their appurtenances for the supply of water, whether installed in conjunc­tion with any other works or services, along public roads, easements or allowances or within private property lines up to three feet of any building or structure; regardless of the ultimate use of the private property."

[emphasis added]

10, The Board's determination in that case is certainly of some precedential value, but we do not accept that it is dispositive of the sector issue in this case. That decision involved a board area different from the board area in which this complaint arose and also involved different trades. Indeed, as the Board indicated in West York Construction (No. 2), [1983] OLRB Rep. Dec. 2132, local area practices are relevant in making sector determinations. The Board stated in that case at 2142:

"Lacking a definition of either the residential or the ICI sector of the Act, the Board is required to determine the dividing line between them with limited statutory guidance. In determining the matter, we incline to the view that as far as reasonably possible our conclusion should be one which takes into account existing industrial relations realities. We would refer in this regard to our earlier expressed view that by incorporating the notion of sectors into the Act, the Legisla­ture did not thereby intend to change the existing understanding between trade unions and employers as to the scope of the different sectors. We recognize that local practices and under­standings might vary in different parts of the Province and that our approach has at least the potential for different results in different areas. We also recognize that this might create a num­ber of uncertainties. Nevertheless, we view such a situation as something that both trade unions and employers can accommodate themselves to. Indeed, if the result of this approach is that the line separating the residential and ICI sectors is somewhat different in various parts of the Prov­ince, it would be precisely because trade unions and employers in different parts of the province have already adopted different approaches to the issue.

This is not to say that local area practices or local agreements will always be determinative. Most projects clearly fall within one sector or another, and a local practice or agreement cannot alter that fact. Accordingly, an agreement to regard a clearly ICI project such as a shopping plaza or a school as residential would not find much favour with the Board. Rather, it is only with respect to those relatively small number of projects which fall into the 'grey area' between the sectors that a widely accepted local practice or agreement might assist in deciding how the project should be characterized. We would caution, however, it is possible that for one reason or another other relevant factors might be persuasive enough to cause the Board to conclude that a local practice or agreement should not be followed. Each situation will have to be deter­mined on the facts involved."

See also Sword Contracting Ltd., supra, at 754.

11. Counsel for the respondent and counsel for the intervener also emphasized that much of the evidence that would be relevant to the sector determination based on the principles set out in West York No. 2, supra, would also be relevant to determining the merits of this complaint before us. Counsel submitted that bifurcating the proceedings would unduly prolong them and result in the duplication of a great deal of evidence. Counsel also submitted that since the work in dispute is completed, no parties other than those already involved in this proceeding have any interest in the manner. Counsel argued that in as much as all parties affected were already before the Board, the hearing should proceed on the merits with the Board determining the sector issue as simply another issue to be resolved at the conclusion of the case. Counsel relied on Teperman & Son Ltd., [1980] OLRB Rep. June 788.

12. The Board, in Armbro Materials and Construction Ltd., supra, in deferring consideration of the merits of a work assignment dispute pending a sector determination, wrote at page 582:

“…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 [the scope of relevant area practice and the applicable collective agreements], 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 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.

10. 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 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 long standing to participate. A Board Officer is hereby authorized to meet with the parties to assist them in identifying the parties which 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)."

[emphasis added]

13. We respectfully agree with that approach. We do note, however, that the deferral in that case was based, in large part, on the Board's perception that it would be "the most expeditious manner of proceeding." If no persons other than the parties to this proceeding wish to participate in the sector determination, then it is clear to us that the matter should proceed as suggested by counsel for the respondent and counsel for the intervener and in the way contemplated by the Board in the Teperman & Sons Ltd. decision, supra.

14. Therefore, we hereby authorize a Labour Relations Officer to meet with the parties in order to prepare a list of persons, employers' organizations, and unions who should be given notice of the sector determination aspect of this proceeding and to report back to the Board. Since much of the evidence relating to the sector issue may also be relevant to the merits of the complaint, the evidence relevant to the sector determination that is also relevant to the merits of the complaint will be applied by the Board in dealing with the merits of the complaint. The Registrar is hereby directed to assign the same panel of the Board to the hearing of the sector determination and to the hearing of the merits of the complaint.

15. While this panel of the Board is not seized with this matter, we are hereby requesting the Registrar, if possible, to schedule the balance of this proceeding before this panel of the Board.