United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 599 v. Armbro Materials and Construction Limited, 1987 CanLII 3061

[1987] OLRB Rep. July 948

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: R. A. Furness, Vice-Chair, and Board Members R. Montague and D. Wozniak.

APPEARANCES: L. C. Arnold and C. Carter for the complainant; Bruce Binning and Dan Fryzuk for Armbro Materials and Construction Limited; A. M. Minsky, 0. C. for Labourers' International Union of North America, Local 183; no one for intervener #1; Richard I. Charney for intervener #2.

DECISION OF THE BOARD; July 29, 1987

1. This is a complaint which has been filed under the provisions of section 91 of the Labour Relations Act in which the complainant requests the Board to make a direction with respect to work which the complainant has described as:

The installation of site services at the Honda plant building project at Alliston, Ontario, 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 two feet above installed pipe, and all manual work in connection with trenching and backfilling including compacting.

hereinafter referred to as the "project".

2. This complaint was filed on May 25, 1985. A pre-hearing conference was held before a Vice-Chair of the Board on July 24, 1985, and on two occasions thereafter. Subsequently, this complaint was listed for hearing on March 13, 1986. The purpose of the hearing was to consider the evidence and representations of the parties with respect to all matters arising out of and incidental to the complaint regarding the assignment of work. The decision of the Board was released on May 14, 1986. This complaint was again listed for hearing before the present panel on May 19, 1987.

3. In the decision dated May 14, 1986, the Board permitted intervener #2 to intervene in this complaint. See Armbro Materials and Construction Limited, [1986] OLRB Rep. May 579. A second issue before the Board had reference to area practice. It was the position of the complain­ant that the relevant area practice to be considered in the hearing on the merits of this complaint is the practice in the Board's geographic area #18 with respect to the installation of site services on industrial, commercial and institutional projects and that no limit should be placed on how far back in time such evidence may go. The Labourers' International Union of North America, Local 183 ("Local 183") adopted the position that the work in dispute is sewer and watermain work and sought 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 was the position of Local 183 that the sewers and watermains sector cuts across the other sectors listed in section 117(e) of the Act and that the work in that sector is defined by the tasks associated with sewer and watermain construction and not by the location in which it is being constructed. A third issue before the Board was whether Armbro Materials and Construction Lim­ited ("Armbro") and Local 183 have a collective agreement applicable to the project. It was the position of the complainant that the collective agreement observed by Armbro and Local 183 on the project is a sewers and watermains collective agreement which has no application to the project because the entire project, including the work in dispute is within the industrial, commercial and institutional sector and can only be covered by a collective agreement in the industrial, commercial and institutional sector. It was the position of Armbro and Local 183 that the work in dispute is within the sewers and watermains sector and that the collective agreement observed by Armbro and Local 183 applied to the work in dispute.

4. It was the position of Armbro and Local 183 that the second and third issues raised mat­ters which required a determination as to whether work performed at the project is within the industrial, commercial and institutional sector of the construction industry under section 150 of the Act. Armbro and Local 183 sought to have the Board defer the hearing of the merits of this com­plaint pending a determination of the sectoral issue. In its decision dated May 14, 1986, the Board concluded that the issue of whether the work in dispute is within the industrial, commercial and institutional sector should be determined under section 150 before the determination of any other issues which are relevant to this complaint. The Board also decided that a determination under sec­tion 150 need not be made the subject matter of a separate proceeding. The Board concluded its decision by stating at pages 582-5 83 as follows:

5. . . .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 employer's 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.)

6. Once the issue of whether the 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.

7. 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, council of trade unions, employer, and employers' organizations which are agreed by the parties or found by the Board to have a direct connection with that project.

8. In this portion of the complaint, the Board has been asked under section 150 of the Act to determine whether the work on the project falls within the industrial, commercial and institu­tional sector of the construction industry. Section 150 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 clause 117(e).

Section 117(e) of the Act further provides:

(e) "sector" means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the res­idential sector, the sewers and watermains sector, the roads sector, the heavy engi­neering sector, the pipeline sector and the electrical power systems sector;

[emphasis added]

Before inquiring into the merits of this application under section 150, the Board entertained repre­sentations on a preliminary matter concerning the interrelationship of these two sections.

6. In the course of addressing arguments to the Board, counsel referred extensively to a series of cases where the issue of determination under section 150 or the application of section 117(e) had been considered. The Board was referred to The Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245; Ecodyne Limited, [1979] OLRB Rep. July 629; West York Construction Ltd., [1983] OLRB Rep. Dec. 2132; Sword Contracting Limited, [1985] OLRB Rep. May 743; Metropolitan Toronto Sewer and Watermain Contractors Association, [1986] OLRB Rep. Oct. 1362 and Steen Contractors Limited, [1987] OLRB Rep. Jan. 137.

7. The complainant argued that in making the determination under section 150, the Board ought to hear evidence of area practice and relied on West York Construction Ltd. and adopted the position that the approach to work characteristics in The Heavy Construction Association of Toronto was confusing. The complainant emphasized that the key to a determination under section 150 was to ascertain how the trade unions on a project have treated the project in terms of area practice. It was also argued by the complainant that the decision of the Board in Metropolitan Toronto Sewer and Watermain Contractors Association that the Board would 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, casements 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" should be confined to the Board's geographic area #8. The complainant urged the Board to treat that decision as being of limited value because it is a decision without reasons.

8. The other parties who were present at the hearing argued against the position taken by the complainant. It was strongly argued that the issue of local area practice was irrelevant in this complaint. The other parties relied upon the decision of the Board in Metropolitan Toronto Sewer and Watermain Contractors Association that sewers and watermains work include work done in the public sphere as well as work done within private property up to three feet of any building or struc­ture, regardless of the ultimate use of the private property. It was argued that the ultimate use of the private property ought not to determine whether the work in issue was in the sewers and water-mains sector or the industrial, commercial and institutional sector of the construction industry. It was also argued that even though the decision in Metropolitan Toronto Sewer and Watermain Contractors Association refers specifically to the Board's geographic area #8, sectoral determina­tions should not vary either by geographic area or by trade as was referred to by the Board in Steen Contractors Limited because this would lead to different sectors for different trades on the same job. It was strongly argued that a definition of a particular project as falling within a particular sec­tor should apply across the province. Reference was made to the definition of sector in the Act and to the fact that sector was not defined neutrally and was defined by reference to work characteris­tics. The remarks of the Board on work characteristics in The Heavy Construction Association of Toronto were understood by the other parties and it was pointed out that the only one of these work characteristics referred to by the Board in West York Construction Ltd. was the work charac­teristic of employee relations. In an analysis of West York Construction Ltd. it was pointed out that there was not a single reference to the words "as determined by work characteristics" which appear in the definition of sector in section 117(e) of the Act in the course of the Board's decision on the sectoral determination.

9. The definition of sector in section 117(e) refers to "a division of the construction indus­try as determined by work characteristics". There is no reference to "area practice" or "geographic area" in section 117(e). The term "area practice" is a concept which has been borrowed from among the criteria used by the Board in making a direction in a jurisdictional dispute under section 91 of the Act. The term "geographic area" has been imported from the certification and accredita­tion sections of the construction industry provisions of the Act. Reference is made to sections 119(1) and 126. The term "geographic area" in those sections is used in connection with the deter­mination by the Board of the appropriate bargaining unit or the appropriate unit of employers. In the view of this panel the resolution of jurisdictional disputes and the determination of appropriate bargaining units or appropriate units of employers has nothing to do with a determination under section 150 in the light of the definition of sector set forth in section 117(e).

10. In The Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245, the Board stated at page 249:

11. An examination of the enumerated sectors in clause (e) of section 106 [now 117] leads to the conclusion that for all but one of the sectors listed the names given to these divisions of the con­struction industry relate to the use which is ultimately made of the construction. At first this may appear to be somewhat of a puzzle in that the connection between the use of the construc­tion and the work characteristics may not be obvious. Open [sic] examination, however, it becomes clear that the use that is ultimately made of the construction will to a large extent determine the task or the work to be performed at the construction site. The task in turn will have certain characteristics which make that project distinguishable from other types of con­struction. Thus, each of the sectors enumerated, by focusing on the different end uses of the construction, distinguishes one type of construction from other types of construction on the basis of peculiar tasks which are common to that type of project. The work characteristics which distinguish one sector from the other sectors of the construction industry may be shown in terms of the type of problems to be dealt with at the job site; the types of solutions resorted to at cer­tain job sites, the material used, the relative importance of various specifications, the variety of skills and trades, and certain characteristic relations with employees. This list of characteristics is not to be thought of as exhaustive, but as examples of particular characteristics which differ between the various sectors enumerated in the Act.

This passage was quoted with approval by the Board in Ecodyne Limited, [1979] OLRB Rep. July ~29 at page 634. The Board in this analysis of section 117(e) has referred to various, although not a complete list of, work characteristics which may be considered by the Board. In West York Construction Ltd. the Board considered the difficult issues of whether the construction of (i) a structure which contained parking garages and self-contained apartment units and (ii) a structure which served as a Salvation Army Training Centre which contained a playroom, an electrical/mechanical/laundry room and self-contained apartments, came within the residential sec­tor of the construction industry. The only work characteristic considered by the Board in West York Construction Ltd. was that of relations with employee. In that case, the Board was dealing with a grey area between work which clearly falls within the residential sector anti work which clearly falls within the industrial, commercial and institutional sector. In interpreting the West York Construction Ltd. case, the Board stated in Sword Contracting Limited, [1985] OLRB Rep. May 743 at page 753 that:

In the West York case, the Board was also asked to draw a dividing line between the ICI sectors of the construction industry. In that case, the Board indicated that in instances where it is not clear what sector a construction project comes within, the Board will look to local area practice to see how trade unions and employers regard the work.

It appears that the work characteristics in West York Construction Ltd. were sufficiently similar that the Board decided to look beyond the statutory definition of sector as defined in section 117(e).

11. The concepts of area practice and geographic practice, which have been referred to before, find no basis in section 117(e). Similarly, there is no indication in either section 117(e) or section 150 that the Legislature intended to introduce the variable of "area practice" or "geo­graphic area" into sectoral determinations. If such had been the case, the Legislature, in our opin­ion, would surely have included the words "area practice and geographic area" after the word characteristics in section 117(e). As was referred to earlier, the Legislature has recognized differ­ences based on geography in the certification and accreditation provisions in the construction industry by specific statutory language.

12. In Steen Contractors Limited, the Board appeared to indicate that different trades could give rise to different sectoral determinations. There is nothing in sections 117(e) and 150 which indicates that the Legislature intended to fractionate sectoral determinations in this way. In deter­mining appropriate geographic areas under the certification provisions of the Act, the Board con­templated (see, for example, M. Sule Construction Ltd., [1962] OLRB Rep. Nov. 251 and Welcon Construction Limited, [1962] OLRB Rep. Dec. 379) and rejected arguments that different trades whose local trade unions had different geographic jurisdictions ought to have different geographic areas for each trade. There exists one set and not several sets of geographic areas in Ontario. The one set of geographic areas applies equally to all trades. In our opinion, by analogy, labour rela­tions would be best served by not making distinctions among the trades in sectoral determinations.

13. The decision of the Board in Metropolitan Toronto Sewer and Watermain Contractors Association is clearly of precedental value in a proceeding before the Board. However, since that decision does not set forth its reasons in any great detail and since the description of the work in dispute has not been agreed upon, that decision is not dispositive of the issue under section 150.

14. For the foregoing reasons, the Registrar is directed to list this matter for continuation of hearing. At that hearing the Board will entertain evidence of the work characteristics on the work in dispute from the parties in the sectoral determination under section 150.

15. The parties are directed to endeavour to agree upon a precise description of the work in dispute prior to the hearing.

16. The panel is not seized. The matter is referred to the Registrar.