[1990] OLRB Rep. September 915
2841-88-JD Millwright District Council of Ontario on its own behalf and on behalf of its Local 1244, Complainant v. Acco Canadian Material Handling, a Division of Babcock Industries Canada Inc. and Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and S. Weslak.
APPEARANCES: N. L. Jesin, J. D. Watson and H. Martinak for the complainant; Fred Heerema and Anthony H. Allen for Acco Canadian Material Handling, a Division of Babcock Industries Canada Inc.; S.B.D. Wahl and F. Marr for Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700.
DECISION OF THE BOARD; September 6, 1990
[1]. This complaint under section 91 of the Labour Relations Act was made by Millwright District Council of Ontario on its own behalf and on behalf of its Local 1244 ("the Millwrights") in response to a grievance of Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700 ("the Ironworkers") filed against Acco Canadian Material Handling, a Division of Babcock Industries Canada Inc. ("Acco"). At the commencement of hearings into the merits of the complaint, the parties disagreed, amongst other things, about the description of the work in dispute, the kind of work about which the Board should hear evidence respecting Acco's past practice and the past practice of other contractors who employed either or both trades, and the geographic scope of the past practice evidence. The practice of the employer who has made the disputed assignment ("employer past practice") and of other employers ("area past practice") who have performed the work are two of several criteria considered by the Board in deciding work assignment disputes.
[2]. The Board heard the parties' submissions on these issues. The Millwrights took the position that the work in dispute was simply the installation of a monorail conveyor and, therefore, the Board should limit past practice evidence to evidence about the installation of monorail conveyors. The Ironworkers took the position that the issue between the two trade unions which underlies the complaint was much broader than the installation of monorail conveyor systems. It encompassed the installation of all types of material handling conveyor systems and the machinery and equipment associated with them. Therefore, according to counsel for the Ironworkers, the description of the work in dispute and the scope of past practice evidence had to be broad enough to accommodate the broader issue if the complaint was going to remedy this type of jurisdiction dispute. Acco took no position on the issues.
[3]. After considering the parties' submissions, the Board issued its decision in writing that the work in dispute was:
all work in connection with the installation of a monorail conveyor system known as a monoveyor at the newly constructed Magna plant in Maidstone, Ontario.
[4]. With respect to employer and area past practice, the Board's decision was that it would receive evidence about the installation of two types of conveyor systems, monorail systems and package conveyor systems. For purposes of Acco's past practice, the Board's decision limited the evidence to jobs performed by Acco in the Province of Ontario, and for purposes of area past practice, the evidence was limited to jobs performed in the Counties of Essex and Kent (Board area #1). The Board directed the parties to exchange and to file with the Board the lists of jobs about which they intended to call evidence of employer and area past practice. The lists were to contain, as well, certain minimum information about the jobs.
[5]. Past practice evidence is only relevant to deciding the proper assignment of work in dispute if it can be tied in with the actual work in dispute. At the same time, the scope of past practice evidence should not be so narrow as to interfere with a party's full opportunity to present its evidence and make its submissions on the issue of the proper assignment. That raises the question of where is the sensible place to draw the line as to the past practice evidence to be heard. In the instant proceeding, in the Board's view, limiting past practice evidence to the two types of conveyor systems was that place. This is because the two systems include a sufficient variety of conveyors which might arguably be included in the term "monorail conveyor" so as to allow the parties full opportunity to present their evidence and make their submissions respecting the conclusions to be drawn by the Board from past practice evidence.
[6]. During examination-in-chief by counsel for the Ironworkers of the first of several contractors whom the Ironworkers expected to be calling to testify about jobs on their job list, counsel sought to adduce evidence about a job on the list which involved work on a bridge crane. Millwrights' counsel objected on grounds which included that the job did not involve the installation of conveyors in either of the two systems described above and, even if the Ironworkers were relying on the evidence for purposes of another criterion considered by the Board, economy and efficiency, and not for area past practice, the only relevant evidence was that respecting Acco's operations. Ironworkers' counsel submitted, amongst other things, that evidence of the economies and efficiencies of the way other employers have organized and utilized their work forces to install the two types of conveyor systems is relevant to the Board's assessment of the criterion of economy and efficiency. Moreover, counsel argues, evidence which would show that employers other than Acco who installed the two types of conveyor systems organized and utilized their work forces on all of their construction work in the same way as they do for installing the two types of conveyor systems, is relevant to the economy and efficiency criterion. He submits that the Board has recognized the relevance of the economies and efficiencies of employers other than the one who has made the disputed assignment. In that respect, he argues that K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185 demonstrates that the Board analyzes the economies and efficiencies within the operations of each company which gives evidence in a work assignment complaint.
[7]. K-Line was an electrical contractor who employed members of the International Brotherhood of Electrical Workers, Local 353 to perform the work in dispute. The complainant Labourers' International Union of North America, Local 183 disputed K-Line's assignment to members of Local 353 although K-Line did not employ members of Local 183 or have any collective bargaining relationship with it. The decision does not disclose how many other employers gave evidence about how they performed the type of work in dispute. Therefore, the Board is not prepared to agree that the decision demonstrates a willingness of the Board to consider the economies and efficiencies of all employers who testify in a complaint. It is clear, however, that the Board did consider evidence of two employers about the relative productivity of construction labourers and electrical workers performing the type of work in dispute. The two employers performed it with construction labourers, members of Local 183.
[8]. Urban Consolidated Construction Corporation Ltd., [1977] OLRB Rep. Feb. 41 and Tilechem Limited, [1982] OLRB Rep. July 1074 are other examples of the Board considering evidence of the economies and efficiencies of employers other than the one who made the disputed assignment.
[9]. Were the Board to limit the evidence as argued by counsel for the Millwrights, in many complaints the Board would have no evidence on which to compare the relative economies and efficiencies of performing the type of work in dispute with, in the words of section 91 of the Act, "...persons in a particular trade union or in a particular trade, craft or class rather than [with] persons in another trade union or another trade, craft or class,...". If, however, the evidence is to serve that purpose, it must relate to the work in dispute.
[10]. In the instant complaint, the Board has said it will admit area and employer past practice evidence about the installation of the two types of conveyor systems. If consideration of economy and efficiency of other employers is to have any relevance to the work in dispute in this complaint, evidence going to that criterion must at least relate to those two systems. The Board is satisfied that evidence about how the contractor, who was testifying when this issue arose, organized his work force to perform work on bridge cranes on the job in question does not relate to those two systems. Therefore, the Board will not admit the evidence.