International Association of Bridge, Structural and Ornamental Ironworkers, Local 721 v. Newmarch Inc., 1990 CanLII 5654

[1990] OLRB Rep. February 179

1078-88-JD International Association of Bridge, Structural and Ornamental Ironworkers, Local 721, Complainant v. Newmarch Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463, Respondents v. Millwright District Council of Ontario, on its own behalf and on behalf of Local 2309, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Lear and F. Kelly

APPEARANCES: Maurice A. Green, Dan McCarthy and Aaron Murphy for the complainant; Walter Thornton, Joe Liberman and Ross Bannerman for the respondent, Newmarch Inc; A. J. Ahee and C. Burrows for the respondent, United Association; N. L. Jesin, Jim Griffin and H. Carruthers for the intervener

DECISION OF THE BOARD; February 22, 1990

1. This is a complaint under section 91 of the Labour Relations Act wherein the complainant has requested that the Board issue a direction with respect to the assignment of certain work.

2. The Board heard the evidence and representations of the parties during fifteen days of hearing over a span of approximately seven months. The protracted span of the hearing was in large part due to the fact that the parties agreed to adjourn five of the fifteen days originally scheduled on agreement of the parties at the pre-hearing conference in this matter.

3. The parties, with the exception of the respondent employer, Newmarch Inc. ("Newmarch") participated in a pre-hearing conference in respect of this matter before another panel of the Board. Newmarch did file a brief with the Board and initially appeared at the first two days of hearing. On April 13, 1989 however, Newmarch withdrew as a participant at the hearing. In so doing, counsel for Newmarch stated that Newmarch would accept whatever decision this Board would make. Counsel further stated that, although Newmarch would not call any evidence or make any submissions in respect of any of the issues raised in this application, any representative of Newmarch who was properly subpoenaed by another party to these proceedings would attend and testify as required. In fact, Mr. Ross Bannerman, Vice-President of Newmarch, was subpoenaed by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463 ("the UA") and did testify. Upon agreement of the parties, on April 13, 1989, Newmarch filed an addendum to its reply which states:

At the time that the work in dispute was assigned, the Employer took the position that the work in dispute involving hollywood rail did not involve a conveyor.

The evidence called by the Complainant on April 12, 1989, given by William J. Olsen, included that the operation or system in question could be considered as a conveyor.

At all material times, the Employer has been aware that there is a difference of opinion on this point and the Employer acknowledges the evidence of Mr. Olsen as a reasonable opinion or characterization.

4. Notwithstanding its withdrawal as a participating party to these proceedings, Newmarch continued to be notified by the Registrar of the continuation dates and correspondence received by the Board in these proceedings in the same manner as the other parties.

5. The Board received extensive and detailed viva voce and documentary evidence. We do not propose to set out all of that evidence. Our findings of facts herein have been derived from the totality of that evidence and on the basis of such facts as were agreed upon by the parties before this Board and/or in the pre-hearing conference.

Work in Dispute

6. The general nature of the dispute involves the unloading, handling and installation of "tool rail" and "tool steel" or "support steel". Various witnesses used either the term "tool steel" or "support steel" and on occasion used these terms interchangeably. From the totality of the evidence, it is clear that, whenever used~ both terms refer to that steel which is attached to the structural steel of the building and from which the tool rail in dispute is hung. The evidence further disclosed that typically a number of other items such as conveyors, pipes, lights, fans, etc. are also suspended from this steel. For ease of reference, we will refer to the angle iron, I-Beams, channel iron, headers, hangers, bracing and generally any of the miscellaneous steel which together make up this "tool steel" or "support steel" as "support steel".

7. More specifically, the work in dispute as set out in the pleadings of the parties and the pre-hearing brief (with which the parties agreed) involves work performed under a contract awarded to Newmarch by General Motors ("G.M."). The work was performed at the G.M. plant in Oshawa. The work was assigned by Newmarch on July 12, 1988 and involves three parts.

8. First, the unloading, handling and installation of Hollywood Rail. Hollywood Rail is a generic name given to a type of tool rail fabricated in this case by the contractor from Schedule 40 pipe and flat bar. In this assignment, Hollywood Rail was suspended from, or attached to, the support steel. The Hollywood Rail itself is used as a support system for tools. In this case, the parties agreed both pneumatic and non-pneumatic tools would be suspended from the Hollywood Rail. The Hollywood Rail does not itself carry pressurized air. Generally, Hollywood Rail has suspended from it both pneumatic and non-pneumatic tools and equipment and, on occasions, trays of small parts. All of these items are used by the G.M. production employee in the production process.

9. In this case, Newmarch assigned the unloading , handling, and installation of Hollywood rail to the UA. The applicant, International Association of Bridge, Structural and Ornamental Ironworkers, Local 721 ("Ironworkers") and the intervener, Millwright District Council of Ontario, on its own behalf and on behalf of Local 2309 ("Millwrights") take the position that Hollywood Rail is a "conveyor" and should have been assigned to a composite crew of Ironworkers and Millwrights pursuant to an agreement between their respective International unions ("the conveyor agreement"). The Ironworkers and the Millwrights have agreed that, if we find that the work was improperly assigned to the UA and should have been assigned to a composite crew, the Board need not interpret that conveyor agreement or decide on the exact composition of the crew. That is a matter which the Ironworkers and Millwrights have indicated they can determine between themselves. It was the assignment of the Hollywood Rail to the UA which is at the heart of this jurisdictional dispute and to which the parties addressed both the major portion of their evidence and submissions.

10. The second portion of the work involves the unloading, handling and installation of Louden rail. Louden Rail is also attached to or suspended from the support steel. The Ironworkers

and Millwrights take the position that Louden Rail is a conveyor and should have been assigned to a composite crew of Ironworkers and Millwrights pursuant to the conveyor agreement. In this case, the unloading, handling and installation of the Louden Rail was assigned to the Millwrights.

11. The third part of the work in dispute is the support steel itself. The support steel is the support framework for inter alia, the tool rail. More specifically, in this case, it supports the Hollywood Rail, Louden Rail, pipe, conduit, lighting and fans. In the assignment, the support steel was assigned to a 50/50 composite crew of UA members and Ironworkers. The Ironworkers and Millwrights each take the position that it should have been assigned to a composite crew of Ironworkers and Millwrights.

Louden Rail

12. At the hearing, the UA did not dispute the assignment of the Louden Rail to the Millwrights. Neither did it dispute the assignment of the support steel which supports that Louden Rail, the sole purpose of which is to support the Louden Rail to the other trades. Counsel for the UA did not however, concede that Louden Rail was a conveyor.

13. In view of the respective positions of the parties, and the agreement of the Ironworkers and Millwrights that if we determine the conveyor agreement to be applicable to this work, we need not determine the exact composition of the composite crew, we find it appropriate to deal with this aspect of this jurisdictional dispute at this stage.

14. Having regard to the evidence, we find that Louden Rail is a pre-purchased, premanufactured conveyor system which, in this instance was supplied to Newmarch by G.M. "Louden" is a manufacturer's name. This type of conveyor rail is generally used to convey heavier loads. It is therefore manufactured of heavier steel than, for example, the Hollywood Rail. In this case, the Louden Rail consisted of six-inch (6 inch) I-beams. We find that as the Louden Rail is a conveyor, it should properly have been assigned to a composite crew of Ironworkers and Millwrights in accordance with the conveyor agreement.

Criteria to be considered

15. In assessing the merits of a jurisdictional dispute in the construction industry, the Board has traditionally looked to a number of criteria which may be itemized as follows:

(a) collective bargaining relationships,

(b) skill and training,

(c) consideration of economy and efficiency,

(d) employer practice,

(e) area or industry practice,

(f) employer preference.

(See, Spruce Falls Power & Paper Company Limited, [1988] OLRB Rep. July 708, Anchor Shoring Ltd., [1974] OLRB Rep. Aug. 528, Boise Cascade Canada Ltd., [1979] OLRB Rep. Sept. 850, Sout ham Murray Printing, [1984] OLRB Rep. June 868, Premier Pipelines Ltd., [1988] OLRB Rep. Oct. 1068 and Toronto Star Newspapers Ltd., [1980] OLRB Rep. April 565). In this instance, the parties in their submissions referred to each of these six criteria.

Collective Bargaining Relationships

16. Newmarch has a collective bargaining relationship with each of the UA, Millwrights, and Ironworkers. In its relationship with the UA, Newmarch is bound to the collective agreement between the Mechanical Contractors Association Ontario and the Ontario Pipe Trades Council of the United Association. That collective agreement has a trade or work jurisdiction clause which provides:

9.1 The parties to this Agreement recognize that it is the employers' sole responsibility to assign work. The contractor shall not assign work contrary to existing area practices predicated on jurisdictional wording outlined in other trade Collective Agreements. The reference herein, to area practices and/or jurisdictional awards must be area practices and/or awards that have been accepted and practiced on projects between Unions.

9.3 Subject to the conditions contained in Clause 9.1 and 9.2 above, and subject to jurisdictional Agreements between trades, decisions of record and local area practice, this Agreement covers the unloading distribution and hoisting of all equipment and piping for plumbing and/or pipe fittings systems, and the fabrication installation and handling of all plumbing pipe fitting and industrial process control systems including all hangers and supports. Where no work claim dispute exists, the original assignment of the above works shall be to the UA.

17. In its relationship with the Millwrights, Newmarch is bound to the collective agreement between the Association of Millwright and Contractors of Ontario Inc. and the Millwrights District Council of Ontario. That collective agreement has a trade jurisdiction clause which contains, inter alia, a claim to the installation of conveyors and mono rails.

18. In its relationship with the Ironworkers, Newmarch is bound to the collective agreement between the Ontario Erectors Association, Incorporated and the International Association of Bridge, Structural and Ornamental Ironworkers and the Ironworkers District Council of Ontario. That collective agreement contains, inter alia, the following provisions relating to the trade jurisdiction of the Ironworkers.

(a) The field fabrication, erection, installation, welding, demolition, revision, repair and dismantling of all structural and miscellaneous steel, header steel, bridging steel, all supports including but not limited to pipe supports, electrical supports, duct supports and like structural members, prefabricated or fabricated on, during and/or after the completion of the job

(c) The rigging, moving, handling, dismantling, assembling, placing and repair of all machinery and equipment including the erection, installation, and dismantling of conveyors, mono rail and overhead cranes.

19. There is no specific reference in any of these collective agreements to Hollywood Rail. The Ironworkers and Millwrights have sought to characterize the work in dispute, most notably the Hollywood Rail itself, as work which involves the installation of a conveyor. If we accept such characterization, then these collective agreements, (as well as the appropriate constitutions of each of the three trade unions) favour an assignment of the work to the Ironworkers and Millwrights.

20. Counsel on behalf of the Millwrights and Ironworkers each asserted that the Hollywood Rail fell in the same category as Louden Rail. Although the length of rail, its weight and perhaps even the material used in the fabrication of the Louden Rail may be different than the Hollywood Rail, fundamentally, the Hollywood Rail and Louden Rail perform the same purpose and have the same use. Each transports material from one point to another either manually or mechanically. It was submitted that the movement of goods, parts, equipment or tools from point A to point B characterize both the Hollywood Rail and Louden Rail as conveyors. It appears to be well settled throughout the industry that Louden Rail is a conveyor. Counsel for the Millwrights and Ironworkers therefore argued that if Louden Rail is a conveyor, and there is no difference in the purpose or use of the Louden Rail and Hollywood Rail (each transports "things") then the Hollywood Rail must also be considered to be a conveyor.

21. We find that we need not determine whether Hollywood Rail is or is not a conveyor. It is clear from the evidence that within the construction industry there is a divergence of opinion on this matter. There is not a clear consensus as to the correct definition of a "conveyor", or whether Hollywood Rail falls within that definition. As we have determined that it is unnecessary for us to label the Hollywood Rail as either being or not being a conveyor, we do not do so.

22. After a review of the totality of each of the three collective agreements and the respective constitutions of the three trade unions, we find that, although the criteria of collective bargaining relationship does not clearly favour any of the three trade unions (insofar as each trade union can point to some provision in its collective agreement upon which to base its claim) the work in dispute falls more closely within the trade jurisdiction claimed by the Ironworkers and Millwrights than the jurisdiction claimed by the UA.

Skill and Training

23. There is no evidence before us to suggest that the members of any trade union are more skilled, have acquired better training, or are more able to perform the work in dispute. Generally speaking, this criterion does not favour any one of the UA, Millwrights or Ironworkers, because it cannot be said that the skills required relate clearly, or primarily, to those of one trade and not the others.

Economy and Efficiency

24. We are unable to determine if this factor favours the assignment of the work in dispute to a particular trade union because of the complete absence of any evidence in respect of this criterion. Although counsel for the UA made certain submissions in respect of this criterion in terms of "continuity of work", those submissions were not supported by evidence. We do not consider it appropriate to consider the criterion of economy and efficiency in the abstract. (Premier Pipelines, supra, K-Line Maintenace, [1979] OLRB Rep. Dec. 1185, Boise Cascade, [1983] OLRB Rep. Feb 194).

Employer Preference and Employer Practice

25. We have considered these two factors together because, in the circumstances of this case, they are closely related. Counsel for the UA argues that both these factors favour an assignment of work to the UA. He submits that in both this disputed assignment and a previous assignment involving substantially similar work, Newmarch assigned the Hollywood Rail to the UA and the support steel to a 50/50 composite crew of Ironworkers and UA. It was asserted that those assignments indicate both the employer's own past practice and the employer's preference.

26. There is no dispute that, in December 1986 Newmarch assigned work which was substantially similar to the work in dispute in the same manner as it did in the July 1988 assignment which forms the basis of this complaint. Moreover, the work in December 1986 also occurred at the G.M. plant in Oshawa.

27. The evidence discloses that after the December 1986 assignment, representatives of both the Ironworkers and Millwrights expressed their dissatisfaction and disagreement with that assignment. A number of meetings between Newmarch and representatives of the Ironworkers and Millwrights occurred. Mr. Murphy of the Ironworkers testified that after the 1986 assignment he wrote to Newmarch on January 5, 1987 and complained about the assignment. He also had numerous meetings with Newmarch officials. On March 25, 1987, he sent a telex to Mr. Bannerman at Newmarch which states:

Be advised that we hold you in violation of our collective agreement in particularly [sic] Article 1 in that the company has assigned work belonging to Ironworkers to another trade, suggest we meet under Article 24 of our collective agreement on Friday March 27, 1987 at 10:00 am at 1604 Bloor 5treet West Toronto. Please confirm by return wire.

28. Thereafter a further meeting occurred. Mr. Murphy testified that, at this meeting, representatives of Newmarch indicated that the work in dispute was a new venture for Newmarch, and that in future the work would be assigned differently based on the evidence which the company received. Mr. Murphy understood this to mean that future assignments would go to the Ironworkers and Millwrights. As a result, and in view of the fact that the work was nearly complete, Mr. Murphy determined not to pursue the grievance, did not file a jurisdictional dispute, and decided to "write it off as a bad experience".

29. Mr. Carruthers of the Millwrights in his evidence stated that he also expressed his disagreement with the December 1986 assignment on several occasions to various representatives at Newmarch. Mr. Carruthers testified that Mr. Bannerman advised him that this job assignment was a "one shot deal and in future if [he] did any Hollywood Rail on that site it would not be done in that manner

30. Notwithstanding the position of the Ironworkers and Millwrights, the December 1986 job was performed in accordance with the original assignment. Although Mr. Bannerman acknowledged that the Ironworkers and Millwrights were unhappy with the assignment and expressed "quite serious disagreement" with it, he testified that Newmarch did not give either the Ironworkers or Millwrights any assurances or make any promises that in future this type of work would be assigned to the Ironworkers and/or Millwrights. Mr. Bannerman confirmed Mr. Murphy's testimony that there was extensive discussion and disagreement about the 1986 assignment. He also acknowledged that prior to 1986 Newmarch had not had a lot of experience with the installation of the work in dispute.

31. In addition to his submissions that these factors favoured an assignment of the work to the UA by reason of employer preference and employer past practice, counsel for the UA also argued that these circumstances indicated the Ironworkers and Millwrights had "sat on their rights" and had failed to proceed with any grievance or jurisdictional dispute complaint. As a result, they were now precluded from complaining that in July 1988 Newmarch improperly assigned the same type of work in the same manner.

32. Counsel for the Ironworkers and Millwrights argued that employer preference could not be given any weight in the circumstances of this case, where the employer had withdrawn from active participation in the hearing. This was particularly true, it was argued, in light of the addendum filed by Newmarch on April 13, 1989 which is referred to in paragraph 3 herein. Counsel also argued that the UA, in its examination-in-chief of Mr. Bannerman, had failed to lead any evidence in respect of the employer preference or such factors as skill, economy and efficiency which traditionally underlie an employer's preference. As noted earlier, the Board does not have any evidence in respect of the economy and efficiency criteria. In this regard, counsel referred to Premier Pipelines, supra and Boise Cascade, supra. In Premier Pipe Lines, the Board stated:

33. The Board agrees also with Labourers' counsel that the employer preference criterion would not be appropriate in this case. This is because, apart from evidence that there is a letter of understanding between the UA and the Association, which purports to prescribe certain minimum manning levels of UA classifications for the work at issue, the Board has no evidence before it as to the basis of Premier's preference for assigning the disputed work to the UA. Nor is there evidence either of any beneficial impact on the economy and efficiency of Premier's construction operations on the Project from the assignment of the work to the UA, or of any adverse impact from assigning it to the Labourers.

34. Counsel for both the Ironworkers and Millwrights submitted that, in this case, the sparse evidence before the Board as to the basis of Newmarch's assignment of the work to the UA in 1986 did not reasonably or rationally support that assignment. Counsel argued that employer preference should only be considered when it is grounded on some rational basis. Counsel submitted that the prevailing area or industry practice did not support the assignment of the work to the UA. It was submitted that the employer's preference or the 1986 assignment was therefore not grounded on some reasonable or rational basis. Therefore, in the absence of some evidence of skill, economy or efficiency to support the employer's preference or the December 1986 assignment to the UA, neither of these factors should be considered.

35. We propose to address the submissions as to the prevailing area or industry practice which Newmarch considered, or should have considered, in making its 1986 assignment when dealing with the criteria of area or industry practice generally.

36. In respect of the criterion of employer preference, we find that this factor does not favour any one of the three trade unions. There is no evidence before us in respect of the economy and efficiency of the employer's operations upon which the employer's preference can be based. Moreover, during his cross-examination by counsel for the Ironworkers in respect of the December 1986 assignment, Mr. Bannerman was asked "does it make a big difference to you regarding what trade does the work?" He responded "not particularly, we're happy to deal with any trade, although naturally we don't like to have jurisdictional disputes". In view of this evidence, we find that the factor of employer preference does not favour the assignment of this work to any particular trade union.

Area or Industry Practice

36. The Board heard a substantial amount of evidence and argument about this factor. At the commencement of the case, on April 11, 1989, we orally ruled that only evidence of industry practice in Board Area 9 (the area in which the disputed work was performed) would be admitted.

37. There was a significant dispute between the Ironworkers and Millwrights on the one hand, and the U.A on the other, about what evidence of area practice was relevant and should be considered by the Board. The UA adopted the position that the only relevant area or industry practice was that practice which related to support steel or Hollywood Rail installed as part of, or in conjunction with, a new type of conveyor system known as the Automatic Guided Vehicle system ("A.G.V. system"). The UA argued that the nature and purpose and the "end use" of support steel and tool rail such as Hollywood Rail, was significantly different when installed as part of the A.G.V. system than the support steel and tool rail installed as part of a "traditional" conveyor system. It was the submission of the UA, therefore, that evidence in respect of the installation of support steel or tool rail, including Hollywood Rail, when installed as part of, or in conjunction with, a traditional conveyor system was irrelevant.

38. Both counsel for the Ironworkers and Millwrights took a position contrary to that of the UA. It was their submissions that there was no difference between the installation of support steel and tool rail between the A.G.V. system and the "traditional" conveyor system. They asserted therefore that the Board should not limit its consideration of area practice only to installations involving the A. G.V. system, and that the many other instances involving the installation of tool rail and support steel at G.M. were equally relevant.

39. The submissions of counsel for the UA in respect of the appropriate parameters of the area or industry practice are inextricably tied to the UA's position that it is now entitled to the work (while it may not necessarily have been entitled to the work on other, earlier, occasions) because of the advent of "new technology" and the "end use" of the tool rail and support steel caused by that new technology. This is the crux of the UA's claim and the reason why it has submitted that the only relevant area or industry practice is the practice which relates to this "new technology". It is therefore useful to elaborate on this aspect of the claim by the UA.

The New Technology

40. The UA claim to the work in dispute arises primarily as the result of the introduction of a new type of conveyor system known as the A.G.V. system at the G.M. plant in Oshawa. Prior to the introduction of the A. G.V. system, the production process at G.M. made use of "conventional" or "traditional" overhead and floor conveyors to move both the vehicles being produced and parts necessary to production. The production process occurred in a traditional "assembly line" fashion where the conveyors used would be of the conventional chain driven, power and free, or electrified monorail type. In such a process, each production operation follows a progressive sequence, which requires employees stationed along the assembly line to perform some work on the vehicle before it passes along to the next stage. Typically, then, this type of assembly line is a "straight-through" process. Parts and materials are also conveyed to the production employees stationed along the assembly line by means of a conveyor.

41. The A.G.V. system introduced at G.M. in the mid-1980's moved away from this traditional assembly line to a new concept of "work cells". In this system, the automobile is carried on an electronically controlled vehicle which follows a predetermined path through the workplace responding to impulses from wiring embedded in the floor. Work cells, capable of accommodating five or six vehicles are located in various parts of the plant. As the line of electronically guided vehicles approaches a work cell, each is diverted into one of the five or six bays, where G.M. employees carry out the next stage(s) of the process before sending the vehicles on their way. In areas where the A.G.V. system is used, there are no conventional floor conveyors.

42. In this case, the UA claims the Hollywood Rail because the Hollywood Rail has suspended from it pneumatic tools and the Filter Lubrication Regulator ("F.L.R.") systems and flex hoses needed to operate those pneumatic tools. The UA claims that, because of the change in the production process with the A.G.V. system, the only use of the Hollywood Rail is to hang these items, the installation of which clearly falls within the jurisdiction of the UA. As the Hollywood Rail supports UA installed items, the installation of the Hollywood Rail is also the work of the UA. Counsel cites as analogous the situation where a bracket or support is installed by that trade whose work is primarily supported by the bracket or support.

43. The UA claims the support steel from which the Hollywood Rail is suspended on much the same basis. In the A.G.V. system, the support steel supports the Hollywood Rail which is, or ought to be, installed by the UA. In addition, the support steel is itself also used to support the F.L.R. systems and UA piping and therefore falls within the jurisdiction of the UA. Finally, it is asserted that the support steel does not support the work of the Millwrights or Ironworkers because, in the A.G.V. system, the support steel no longer supports a conventional conveyor system.

44. The UA position is that in the past the support steel fell within the jurisdiction of the Ironworkers and Millwrights because it supported a conveyor, something which also fell within the jurisdiction of the Ironworkers and Millwrights. With the introduction of the A.G.V. system, because the support steel no longer supports a conveyor and supports only pipes and F.L. R. systems (which it is asserted fall within the UA jurisdiction) that support steel must also fall within the UA jurisdiction. Indeed, counsel asserted that that it was a misnomer to refer to this as support steel and suggested that it was more appropriate to call the angle iron, channel iron, etc. "pipe supports" or "pipe hangers".

45. The UA asserts that the new technology of the A.G.V. system has changed the installation, purpose, quantity and weight of the support steel which hangs from the building steel above the A.G.V. system to such an extent that, whereas in the past the support steel was necessarily assigned to the Ironworkers and Millwrights, that past practice no longer holds true.

46. The UA submits that where the support steel is used to support an overhead conveyor, the support steel has necessarily been of heavier weight and greater quantity, making it relatively easy for the UA to hang its pipes merely by affixing pipe brackets or pipe hangers to the existing support steel and/or building steel. The multi-use purpose of the support steel in that instance meant that it fell within the jurisdiction of the Millwrights and/or Ironworkers.

47. Without an overhead conveyor, the amount of support steel required is decreased. In addition, because the steel does not have to support a heavy overhead conveyor, the actual steel used is "lighter". The UA therefore, asserts that the decrease in strength and quantity of the support steel has meant that the UA can no longer merely attach its pipes by attaching brackets or other pipe hangers to existing support steel. Rather, it must install its own angle iron (which it calls pipe supports) and attach brackets to that angle iron in order to hang the pipes and F.L.R. systems which fall within its jurisdiction.

48. After a review of the totality of the evidence, we find that, although the A. G. V. system is indeed "new technology", this new technology has not changed or altered the installation and purpose of the support steel and tool rail to such an extent that the evidence of area or past practice should be restricted to only A.G.V. system installations. What is "new" in the A.G.V. system is the Automated Guided Vehicle itself, or the manner in which the automobile is transported or conveyed from one part of the plant to another during the assembly process. That "new technology" has not, however, significantly altered or changed the nature of the work in dispute, namely the installation of support steel and Hollywood Rail. That work remains essentially the same, and continues to be performed in the same manner, requiring the exercise of the same type of skills.

49. The position of the UA that the new A.G.V. system has significantly changed the nature of the work in dispute was not supported by the evidence. There was no evidence to suggest that either the installation or purpose of the Hollywood Rail was different depending on whether that Hollywood Rail was used in the A.G.V. system or in the traditional conveyor system. Regardless of whether the Hollywood Rail forms part of a conventional conveyor system or is part of the work cells in the A.G.V. system, the method of installation remains the same. At best, the only difference is that the length of the Hollywood Rail used in the A.G.V. system may be shorter than the length of Hollywood Rail used with the traditional conveyor system. In either instance, however, the nature of the work and purpose of the Hollywood Rail is the same. It is installed so that both pneumatic and non-pneumatic tools, F.L.R. systems and trays carrying small parts can be hung from the trolleys attached to the Hollywood Rail to facilitate the movement of these items by the G.M. employee.

50. Similarly, we find that the nature of the work in respect of the support steel in the A.G.V. system has remained basically unchanged from the support steel used in those areas of the G.M. plant where traditional conveyor systems are in operation.

51. Although it is true that the quantity and strength of the support steel is less in the A.G.V. system where the support steel does not also support a conventional overhead conveyor, the same can be said in those many areas of the G.M. plant where there is a traditional floor conveyor without an accompanying overhead conveyor. The UA's position that the support steel is significantly different with the A.G.V. system is inconsistent with the substantial and uncontradicted viva voce evidence of all of the witnesses (including those called by the UA) that the support steel above the A.G.V. system is essentially the same as the support steel above a floor conveyor. Many of the witnesses testified that in many areas of the G.M. plant in Oshawa, only a traditional floor mounted conveyor is used without the presence of an accompanying overhead conveyor. In those instances, the evidence discloses that there is no difference between the quantity, strength or purpose of the support steel which hangs above that traditional floor mounted conveyor, and the quantity, strength or purpose of the support steel which hangs above the A. G.V. system.

52. Finally, we note that in his evidence, Mr. Burrows, the UA Business Agent consistently adopted the position that, regardless of whether the Hollywood Rail was used in conjunction with a traditional floor conveyor, a traditional overhead conveyor or the new A.G.V. system, the UA would claim the Hollywood Rail if it carried or supported pneumatic tools. Mr. Burrows testified that it did not matter what type of conveyor was being used in the production process, the important aspect of the UA's claim was that the end use of the Hollywood Rail was to support pneumatic tools. We will address the "end use" position of the UA in greater detail herein. We note however that Mr. Burrows' position to Newmarch, and his evidence before us, that the UA was entitled to the work in dispute because of the "end use" of the work, diminishes and detracts from the UA position that the emergence of the "new technology" of the A.G.V. system lies at the root of the UA's claim.

53. For all of these reasons, we have determined that the evidence of area or industry practice should not be limited to only those few instances involving the installation of support steel and Hollywood Rail in the A.G.V. system.

54. We have therefore considered all of the evidence relating to the installation of support steel and Hollywood Rail which was placed before us. The vast majority of that evidence indicates that, with few exceptions, support steel and Hollywood Rail is traditionally installed by a composite crew of Millwrights and Ironworkers. Moreover, the assignment of that work to a composite crew of Ironworkers and Millwrights in the past has not been challenged by the UA. There are some minor exceptions or instances where it appears that the UA did in fact install Hollywood Rail, but a much greater majority of the evidence indicates that installation of Hollywood Rail by the UA is the exception and not the rule.

55. There are two notable exceptions to the evidence of area or industry practice indicating that, generally Hollywood Rail and support steel is installed by a composite crew of Ironworkers and Millwrights which we wish to address. The first is Newmarch's assignment in December 1986, to which reference has already been made. The other is evidence of a mark-up meeting conducted by Nicholls Radtke in September 1986.

56. In the summer of 1986, Nicholls Radtke was awarded a contract involving the installation of support steel and KBK Rail. KBK is another type of tool rail. The function, purpose and installation of the KBK rail is similar to the Hollywood Rail. The work was assigned by Nicholls Radtke's representatives in the field without a formal mark-up. It is not unusual in the automotive industry to assign work without a mark-up because, as stated by Mr. Nicholls, the rules "are pretty well laid out". The work was assigned to a composite crew of Ironworkers and Millwrights. As the work was proceeding, the UA representatives contacted Nicholls Radtke and requested a mark-up as the UA was of the view that its work had been improperly assigned to the Ironworkers and Millwrights. A mark-up meeting was held, the results of which were summarized in a letter by Mr. Nicholls which states as follows:

The evidence received from the Ironworker relates, among other things, to awards by conveyor companies, regarding 50/50 awards to MW/lW for installation of steel structure supporting conveyors and other trades work. We agree with this assignment; however, in this application there is no conveyor involved. This is a new system in the automotive industry in Canada and we, therefore, find it very difficult to find any area practice on which we can base an assignment. The steel structure in this contract supports pipe (air and oil), conduit and lights and KBK rail. The KBK rail in turn supports synflex hose and pneumatic tools or hoists. The hose, tools and hoists are not in this contract and will be installed by G.M..

After much deliberation, it is our opinion that:

1. The Ironworker has a claim to the work by virtue that the overall work forms a structure.

2. The Pipefitter has a claim to the work by virtue that almost everything supported by this structure falls within his jurisdiction.

3. As there are no conveyors involved, it is difficult to see the involvement of the Millwright.

As we are all aware, the work in question has been proceeding and is approximately 80% complete. In order not to cause any undue hardship on the customer, the trades or the contractor, it is our intent to complete the work with the trades who started the work. However, if another project should arise at G.M., Oshawa using this system, our award for the support steel in question would be a 50/50 assignment of IWIUA.

Neither the Millwrights nor the Ironworkers took any steps which indicated disagreement with this letter.

57. Counsel for the UA argued this assignment supported the position of the UA before us and was particularly important because it recognized that the work in dispute involved new technology so that "area practice" was "difficult to find" and was the first mark-up involving support steel used with the A.G.V. system. Mr. Bannerman testified that in making its assignments both in December 1986 and July 1988, Newmarch placed great weight on this documentary evidence filed by the UA in support of its claim. Newmarch did not contact Nicholls Radtke to determine if in fact Nicholls Radtke made subsequent assignments in accordance with this letter.

58. We find that, in the circumstances of this case, the weight to be given to this evidence is insufficient to rebut or counteract the substantial evidence of the witnesses, (including Mr. Nicholls) that prior to the writing of this letter, support steel and Hollywood Rail was generally assigned to a composite crew of Millwrights and Ironworkers. We have already expressed our view that the fact that the A.G.V. system was "new technology" does not significantly impact upon the work in dispute. Further, we concur with the submissions of counsel for the Ironworkers and Millwrights that an adverse inference should not be drawn from their failure to object to this "paper assignment". It would be inappropriate for the Millwrights or Ironworkers to grieve or file a jurisdictional dispute as a result of this letter in circumstances where they had been assigned and were actually performing the work. Moreover, we are of the view that, in determining area or industry practice, the Board must concern itself with how the work has actually been assigned and performed, not with how employers would assign work. In this case, not only was the 1986 work actually assigned and performed by a composite crew of Millwrights and Ironworkers, in 1988 when Nicholls Radtke received a contract involving substantially similar work, the work was not assigned in accordance with this 1986 "mark-up" but was once again assigned to a composite crew of Millwrights and Ironworkers.

59. On June 22, 1988, Nicholls Radtke assigned work in the body shop at G.M. That work included installation of inter alia floor conveyors, piping services and overhead steel. In its assignment, Nicholls Radtke stated that, "the 50/50 Ironworker/Millwright automotive agreement will be in effect for this project." Notwithstanding the fact that the work did not involve an overhead conveyor, Nicholls Radtke assigned the "overhead steel and rails" including the Hollywood Rail to a composite crew of Ironworkers and Millwrights.

60. Mr. Nicholls testified that this assignment of the Hollywood Rail was distinguishable because "[I] assume it is Hollywood Rail without air ... perhaps it's because it supported balancers, that makes it different from the rationale in the 1986 letter". In its assignment to the trades~ Nicholls Radtke states "the Hollywood Rail assignment remains the same because the major purpose of the rail is to support balancers only."

61. We note that in the present case the Hollywood Rail also does not transport air to power the tools. In respect of the fact that the Hollywood Rail has suspended from it "balancers", we note that balancers are a spring-loaded device used with heavier tools to counteract the weight of the tool thereby making it easier for the production employee using the tool. Balancers are used for both heavier pneumatic and non-pneumatic or electrical tools. In the case of the 1988 assignment, Mr. Nicholls did not know which type of tool would be hung from the balancers although it is clear that then, as is the case before us, the Hollywood Rail was used to support tools.

62. In view of these facts, notwithstanding the 1986 Newmarch assignment or the 1986 Nicholls Radtke "paper assignment", we find that the area or industry practice favours an assignment of the work to a composite crew of Ironworkers and Millwrights.

End Use

63. In the past, the Board has not looked at the use made of the end product in determining jurisdictional dispute claims. Rather, the focus of the Board has been on the nature of the work in dispute, and the work performed by the employees in each trade. Thus, in Toronto Star Newspapers Ltd., [1980] OLRB Rep. April 565, after referring to the decisions of the Queubec Labour Court sitting in appeal from a decision of a labour commissioner in La Presse Limiteee, and the Labour Relations Board of British Columbia in Re. Pacific Press, the Board stated at paragraph 19:

64. We accept the conclusion reached in both Pacific Press, supra and La Presse, supra, that the Board must look to the nature of the work done by the employees and not the use made by the employer of the end product of the work in dispute. If the end product was to be cast as a primary criterion the result would be to downgrade the importance of skills and ability, and efficiency, as primary criteria. Clearly the skills associated with performing a work process and the efficiency with which it is performed are inter-related factors. A craft union is one whose members "are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or craft." When called upon to resolve competing work claims between craft unions the Board must look to the work and determine if the skills of one of the crafts are more closely related to the nature of the work in dispute and whether or not the use of these skills by persons trained in the craft will have a bearing on efficiency and economy. If we were to restrict ourselves to the end product these considerations, which must be central to the resolution of any jurisdictional dispute, would become irrelevant.

(See also Premier Pipe Line, [1988] OLRB Rep. Oct. 1068 at paragraph 26). We agree with and adopt these earlier observations of the Board. "End use" is not an appropriate criteria to assist in the determination of this jurisdictional dispute. Moreover, in this casey the evidence does not support the claim of the UA to either the Hollywood Rail or the support steel on the basis of "end use". Indeed, the evidence is to the contrary and highlights the difficulty in applying the "end use" criteria in jurisdictional dispute complaints.

64. In respect of the claim by the UA to the Hollywood Rail because its "end use" is to support air tools and F.L.R. systems, we note first that the parties have agreed that both pneumatic and non-pneumatic tools are suspended from the Hollywood Rail. We further note that the rigid piping which transports the air which powers the pneumatic tools to the various work cells is not itself affixed to the Hollywood Rail. That rigid piping may be attached by brackets, supports, etc. to either the building steel or to support steel. The evidence further discloses that throughout the plant, Hollywood Rail may have suspended from it both pneumatic tools and non-pneumatic tools, F.L.R. systems, trays carrying small parts, etc. Not all of these items fall within the jurisdiction of the UA. In these circumstances, we do not accept that the "end use" of the Hollywood Rail is solely to support items which fall within the jurisdiction of the UA.

65. Of equal importance in our rejection of the "end use" criteria, is the overwhelming and uncontradicted evidence which indicates that Newmarch and the other contractors who have over the years installed Hollywood Rail at G.M. do not themselves always install either the tools or the F.L.R. systems which are attached to the Hollywood Rail. Those items are typically installed by G.M. with its own forces. Indeed, the evidence discloses that the contractors who install the Hollywood Rail generally do not know what the end use of the Hollywood Rail will be. Although it is generally assumed that the Hollywood Rail will hang tools, the contractor does not know if that is in fact the case, does not know if only tools will be hung from the rail, and does not know if those tools will be pneumatic or non-pneumatic tools. What is hung from the Hollywood Rail is left up to G.M. and any items hung from the Hollywood Rail are typically installed by G.M. according to its own specifications. Once installed, the items may be changed, removed or relocated at any time without disturbing the installation of the Hollywood Rail itself. Thus, Hollywood Rail whose "end use'' at the time of installation was solely to support non—pneumatic tools may at some future date have as its "end use" the support of pneumatic tools or vice-versa.

66. In view of the fact that the ultimate "end use" of the Hollywood Rail is not known to the contractor, and in any event may be changed at any time by G.M., and in light of the fact that the contractor who installs the Hollywood Rail does not install the "end use" items, we find it inappropriate to consider the "end use" of the Hollywood Rail as a factor in determining this jurisdictional dispute complaint. To consider "end use" in these circumstances is not only inconsistent with the previous practice of the Board in dealing with section 91 complaints, but would lead to uncertainty in the industry. Contractors in the industry would have to determine in advance what the work in dispute was to be used for in order to bid upon a project and thereafter assign the work. Similarly, a trade union would have to ascertain the "end use" of the work in order to determine whether it had a claim to the work. Its claim to the installation of the Hollywood Rail would vary from project to project depending on the end use of the Hollywood Rail. End use therefore would not only "down grade the importance of skill and ability and efficiency" as criteria, but would in all likelihood increase jurisdictional disputes and claims amongst unions. The work assignments and work jurisdictions claimed by trade unions would be in a constant state of flux as the work was assigned to different trades, depending on the "end use" of the Hollywood Rail which was installed.

67. The same is true if we were to apply the "end use" factor to a trade union's claim to the support steel. In this case, for example, if the Board finds that the UA does not have a claim to the Hollywood Rail, its claim in respect of the support steel is weakened because, as we understand it, the UA claims the support steel by reason of the fact that the support steel supports the Hollywood Rail which it claims it is entitled to install. On the other hand, if we were to conclude that the UA does have a claim to the Hollywood Rail, its corresponding claim to the support steel is strengthened.

68. In any event, the evidence discloses that the support steel in this assignment was not single-purpose support steel. Rather, it was multi-use support steel which supported inter alia, the tool rail, lights, fans, conduit, air pipes, lubricating piping, F.L.R. systems, etc. Of these items only the piping was installed by the UA and clearly falls within its jurisdiction. The F.L.R. systems were ultimately installed by G.M. employees and not by any of the trades in dispute. In light of this evidence, even if we were to accept the UA's position regarding "end use" as an appropriate criterion, the "end use" of the support steel in this instance was not solely to support work which fell within the UA's trade jurisdiction.

69. Having regard to the foregoing, the Board has concluded that the work in dispute was improperly assigned. Pursuant to the provisions of section 91 of the Labour Relations Act, the Board makes the following directions:

Newmarch Inc. shall assign work associated with the unloading, handling and installation of tool rail, and specifically Hollywood Rail and Louden Rail, and support steel in Board Area 9 to employees who are represented by the International Association of Bridge, Structural and Ornamental Iron-workers, Local 721 and employees represented by the Millwrights District Council of Ontario.