[1990] OLRB Rep. April 441
0977-86-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 and International Brotherhood of Electrical Workers, Local 353, Complainants v. Pigott Construction Limited and United Brotherhood of Carpenters and Joiners of America, Local 27, Respondents v. Labourers' International Union of North America, Local 506, Intervener
BEFORE: N. B. Sattenfleld, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
APPEARANCES: L. C. Arnold, Vincent McNeil and William Robinson for the complainants; Pam Yudcovitch, R. A. Werny and James Vain for Pigott Construction Limited; James J. Nyman and Lorenzo Monaco for United Brotherhood of Carpenters and Joiners of America; Eric Donaldson, Dave Stnang and Manuel Silva for the intervener.
DECISION OF N. B. SATTERFIELD, VICE-CHAIR, AND BOARD MEMBER W. GIBSON; April 10, 1990
The name of one of the respondents is amended to read: "United Brotherhood of Carpenters and Joiners of America, Local 27".
This is a complaint made under section 91 of the Labour Relations Act concerning a work assignment dispute. The dispute arose on a project at St. Joseph's Hospital in Toronto on which the respondent, Pigott Construction Limited (hereafter "Pigott"), was the general contractor for the renovation of an existing building of the Hospital and the construction of a new building. The parties referred to the one being renovated as the "retrofit building" and to the new one as the "core building". The Board will use those terms as well. The complaint arises out of the installation of patient service modules in the patient rooms of the two buildings. Three hundred units were to be installed in the retrofit building and one hundred in the core building. The project was winding down when the hearings into this complaint commenced.
The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 and the International Brotherhood of Electrical Workers, Local 353 claim that the patient service modules on the project should have been installed by a crew composed of equal numbers of plumbers, members of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, and electricians, members of the International Brotherhood of Electrical Workers, Local 353. Carpenters and construction labourers employed by Pigott installed them. The bargaining agents for Pigott's carpenters and construction labourers are the respondent United Brotherhood of Carpenters and Joiners of America, Local 27 and the intervener Labourers' International Union of North America, Local 506. For ease of reference, the Board will refer to the four trade unions, respectively, as the UA, the IBEW, the Carpenters and the Labourers.
The specific work in dispute involves transporting from a central storage area to the point of installation and installing patient service modules on the walls of patient rooms, including the fitting of face panels and final clean-up. The modules, when fully equipped, house devices which bring electrical and medical gas services such as lighting, nurse calls, television hook-ups, telephones, oxygen and vacuums into patient rooms. Each of the four types of modules installed on the St. Joseph's Hospital project were made of sheet aluminium. Each is almost floor to ceiling in height and varies in width depending on whether the module serves one or two beds. Two large, removable face panels in each module provide access to the piping and to the flexible electrical conduit inside the box. The face panels fit into channels in the box's frame. The electrical and medical gas devices in a finished module are contained in two compartments which extend the width of the modules. One compartment houses the electrical devices and the other the medical gas devices. Access to the devices is gained by removing a compartment's cover plate. The modules were empty when installed except for a copper pipe and a flexible conduit. The two face panels were removed for installation, but not the two cover plates.
Pigott's construction labourers assisted its carpenters with transporting the modules from a central storage point on the floor where modules were being installed to the point of installation and did the final clean-up. The carpenters installed the modules and fitted their face panels. Installing the modules involved identifying their proper location on the wall of the patient room from a blueprint and anchoring them with screw fasteners to the finished drywall. There were some minor differences in the way the modules were installed in the two buildings, but the essential work functions were as follows. The module was loaded onto a flat, hand cart at a central storage point and taken to the point of installation in a patient room where it was unloaded. The face panels were removed from the unit and marked with the room number. The precise location where the module was to be fixed to the head wall of the patient room was identified using a center line previously marked on the wall and a blueprint on which the patient room is shown. A plumb line was marked on the wall to show the module's location. The module's frame was raised into position and the location of pre-drilled anchor holes in the frame were marked on the wall. Pilot holes were drilled at these marks. If they showed the location not to provide suitable anchoring, the location was adjusted to achieve that purpose. Holes were drilled in the wall at the final location to receive the anchors for the type of screw fastener being used. The anchors were set in those holes. In the retrofit building, the pre-drilled holes in the frame were enlarged to allow for minor adjustments in the placement of the module on the wall. The frame was raised into place and fastened to the wall with the screw fasteners and, after it was checked for squareness, the screw fasteners were tightened. In the retrofit building, the modules were anchored into the masonry block of which the wall was constructed. In the core building, backing boards had been previously attached to the wall studs before the wallboard was applied. It was necessary to find the location of these backing boards from the blueprints before mounting the modules. The modules in the core building were anchored by screw fasteners through the wall into the backing boards.
The frames of approximately 35 of the modules installed in the retrofit building and two of those installed in the core building had to be altered on site in order to fit the walls in some patient rooms. Altering them involved cutting excess metal from the frame's length so that it would fit the available space. These alterations were made by either of the two carpenters who were installing the modules. The work of altering the frames of the units in the retrofit building was performed in the Hospital's carpentry shop using equipment belonging to the Hospital. An electric hand saw with a carbide-tipped blade was used to cut the sheet metal frame, after which the top end of the frame had to be re-attached using sheet metal screws. The two modules in the core building were altered in a similar fashion, using an electric hand saw, but the cutting was done in the patient room where the modules were to be mounted. When the frames had been adjusted, one of the carpenters also cut the larger of the two face panels to fit the new size of the unit. The panels for the modules in the retrofit building were cut on a table saw in the Hospital's carpentry shop. Approximately 35 modules had been modified before the modules were delivered to the Hospital. The carpenters who installed these units also modified their face panels.
The face panels were installed in their modules after the IBEW electricians and UA plumbers had installed and hooked up the module's devices. The face panels were installed by slipping them into the channels or tracks provided for them. In the retrofit building, this work was done by the Carpenters and, on some of the units, it was necessary for them to trim the panels so that they would fit properly into their tracks. The trimming was done with a smooth plane. The panels for the modules in the core building were installed by the carpenter foreman and there is no evidence whether these panels required any trimming.
Pigott had been general contractor on other hospital construction projects before undertaking the job at St. Joseph's. It is, however, the first such job for which its contract included installation of patient modules or any panels or boxes which were to contain devices supplying medical gases or electric and electronic services to patient rooms. On all of its previous hospital jobs, that work was included in the electrical division of the contract. The work was bid to Pigott and performed for it by electrical trade contractors. Pigott knew of no reason why the modules at St. Joseph's were specified by the architect to be part of its work. It is also the first of Pigott's hospital jobs on which carpenters have installed patient service modules.
Pigott, like many general contractors, employs carpenters and construction labourers on its projects. It does not employ plumbers and electricians directly and does not wish to do so. Whenever it needs those trades it usually obtains them from a subcontractor who charges Pigott for their wages. Pigott has no collective agreements with either the UA or the IBEW and, while the UA stated that it would supply its tradesmen directly to Pigott, the IBEW would not. The IBEW's position is based on an undertaking in clause 402 of the electricians provincial agreement that no party ".. .whose business is not recognized as electrical work." will be signed to the agreement. Ron Carrol, the IBEW business agent at the time, told the Board that Pigott is not an employer who would be signed to the agreement and, without the agreement, the IBEW would not supply electricians directly to Pigott. Pigott decided to perform the work using its own carpenters because it knew the quality of their work, they were always present on the job and would be available to install the modules as they were delivered to the job site. Pigott also took into account the fact that, if it acquired electricians and plumbers from subcontractors and performed the work with them, it would have to pay a mark-up to the subcontractors on the wages paid to the tradesmen. Pigott made that decision based on its general experience with the bidding practices of subcontractors and without seeking bids on the work.
Pigott and the Carpenters are bound to the carpenters provincial agreement. Schedule "A" of that agreement sets out the work which the Carpenters claim to belong to their trade and to be covered by the provincial agreement. Schedule "A" claims the following kinds of work, amongst others:
(1) ". . the.. assembling, erecting, fastening.. .of materials of wood, plastic, metal, fibre, cork and composition, and other substitute materials;"
(2) "[t]he installation of laboratory, institutional fixtures, and equipment, also cabinets, and work-benches, bookcases and cabinets, either separately or in connection with heating or air conditioning units;...";
(3) "[t]he handling and installation of all mill and cabinet work."
Clause 19.01 of Article 19 - Work Jurisdiction states as follows with respect to Schedule "A":
19.01 The assignment of all work claimed in Schedule "A" and which is in accordance with established local area work practice shall be to members of the United Brotherhood of Carpenters and shall take precedence over any assignment awarded by any method of jurisdictional disputes settlement.
Where it can be established, local area work practice shall be as under the Collective Agreements which were in force prior to April 30, 1978 and April 30, 1979, in Sarnia Local 1256.
For the purpose of this Article "local area" shall mean the geographical jurisdictional area or areas of the local unions or district councils.
Pigott and the Labourers are bound to the labourers provincial agreement. Schedule "E" of the agreement includes a claim for tending carpenters and states that "[i]ending shall consist of preparation of materials and the handling and conveying of materials.". Clause 2.06 of the labourers provincial agreement provides as follows:
2.06 (a) Schedule "E" to this Collective Agreement constitutes a list of work that is claimed by the Union.
(b) Where work within Schedule "E" is claimed by the Union and is within the I.C.I. Sector and there is no work claim dispute within the meaning of Article 8.01 the work will be assigned to employees represented by the Union.
(c) In the event an Employer is found to have violated the provisions of 2.06 (b) above the Employer shall re-assign such work to employees represented by the Union and no claim for damages will be made.
The collective agreements to which the IBEW and the UA are bound, but which are not binding on Pigott, contain broad work jurisdiction claims which would incorporate the work in dispute.
The UA, IBEW and Carpenters each filed copies of the constitutions of their respective international unions which are binding on them. Each includes a broad claim to jurisdiction over certain work as the exclusive preserve of its trade, the trade union organization and members. Those claims incorporate the work in dispute but do not specifically refer to it. An example of their claims may be found in the quotation at paragraph 10 above in the quotation from item 1 of Schedule "A" of the carpenters provincial agreement. The same language is used in the Carpenters' constitution to describe its work claims for the carpentry trade.
The complainants called extensive evidence about the installation of medical gas and electrical services on hospital construction projects in Metropolitan Toronto and its vicinity. The only other hospital project, of which there is evidence, where patient service modules closely similar to those at St. Joseph's Hospital have been installed was at Credit Valley Hospital in 1985 and 1986. They consisted of a frame made of sheet aluminium with a single face panel made of core board covered with an arborite laminate. Nearly 1000 of them were installed by members of the Carpenters employed by the general contractor. The modules were empty when they were installed but were to house devices supplying medical gas and electrical services to patients. Ron Carrol, Business Agent of the IBEW at the time of the project, told the Board that this was the first time that he had seen patient service modules with panels made of laminate-covered core board. The next, and only other time that he had seen them was at St. Joseph's Hospital. The Credit Valley Hospital project was also the first time he had known members of the Carpenters to install patient modules.
Carrol sought to have the general contractor on that project assign the work to electricians and plumbers. When a meeting with the contractor and representatives of the Carpenters and the UA failed to achieve that change, the IBEW's international parent filed a complaint with the Impartial Jurisdictional Disputes Board under the Plan for Settlement of Jurisdictional Disputes in the Construction Industry. Carrol was informed later by his international union that the Chairman of that board would not process the complaint because the board was not functioning at the time and the project was close to being completed. No complaint about the work assignment was made under section 91 of the Act.
There have been projects at other hospitals where patient service modules generally similar to the ones at issue have been installed. At Toronto Western Hospital 250 modules supplying medical gas and electrical services were installed in examining rooms. These units were the same as one of the module styles installed in St. Joseph's, except that they were four feet in height instead of nearly floor to ceiling. At other hospitals there have been patient service modules installed which were similar to those at St. Joseph's except for the fact that the face panels were made of vinyl-clad sheet metal. Approximately 60 such wall-mounted units were installed in Mississauga General Hospital, and 12 were installed in each of Peel Memorial Hospital and Wellesley Hospital. Except for 4 units at Peel Memorial which contained electrical components only, all of these modules were installed by crews composed of equal numbers of UA plumbers and IBEW electricians. Approximately 100 to 150 modules similar to those at St. Joseph's have been installed in the intensive care unit at Scarborough Centenary Hospital. The face panels of these units were made of opaque acrylic. The units were floor-to-ceiling in height. Approximately one dozen on one floor had to be cut because the floor slab had been poured too thick. The aluminium frame and acrylic panel were cut by saw. In each room, several modules were installed on the finished drywall, abutted one to the other so that they appeared to be the wall. Even though the modules were to include components for medical gases, they were installed by IBEW electricians. One of the electricians who worked on the installation testified that, had UA plumbers claimed the work, the installation would have been done by a crew composed of both trades. On most of these projects carpenters represented by the Carpenters were working on the projects when patient service modules were being installed. They made no demand for the work to be assigned to them.
The work methods used to install the modules which were closely or generally similar to those installed at St. Joseph's Hospital were substantially the same as the methods used to install the patient service modules in issue. The only evidence of any need to cut the frames and panels of the modules at the other hospitals is the evidence respecting Scarborough Centenary Hospital.
There was evidence of substantial quantities of a type of patient service module referred to as a horizontal strip module installed in some of these hospitals and nine others in the area. In most instances the modules provided both medical gas and electric services. In a few instances, they provided only electric or electronic services. When they contained devices for both services, they were installed consistently by crews composed of both UA plumbers and IBEW electricians. When they provided electrical services only, they were installed by IBEW electricians. The sheet metal frames for these units were recessed into the wall cavity and anchored by screw fasteners to the wall studs before the drywall was applied. After the devices were installed and hooked up, they were covered by a removable face plate. The face plates were metal or vinyl-covered metal. In some installations, electrical receptacles made of thin-gauged steel were used in place of sheet metal frames. The receptacles were fastened together in gangs and mounted between the wall studs in the same manner as the sheet metal frames to house the medical gas and electrical devices. When finished, they also were covered by a removable, vinyl-covered face plate.
Installation of the different types of patient service modules on the hospital construction projects in evidence was performed under subcontract from the project general contractors, usually to the electrical contractor and, if not, to the mechanical contractor. Pigott was general contractor on four of the projects prior to St. Joseph's Hospital. On all four, Pigott subcontracted the installation of patient service modules to an electrical contractor along with all of the other electrical work in the electrical division of Pigott's general contract. On all four projects, the modules were part of the equipment and work in the electrical division of Pigott's general contract which it subcontracted as a package to an electrical trade contractor. The IBEW electricians and UA plumbers who installed the modules were employed by the electrical and/or mechanical contractors on the projects.
The Board has before it as well, evidence that UA plumbers and IBEW electricians in Metropolitan Toronto and vicinity regularly install sheet metal boxes and panels varying in size from four inches square to several feet in length or width. They are installed in all types of commercial and industrial construction to house plumbing and electrical devices. They may be wall mounted or recessed, involving similar work methods to those employed in installing patient service modules. There is little need, however, to cut them to fit the available space.
The Board gets its jurisdiction to adjudicate work assignment complaints from subsection 91(1) of the Labour Relations Act which states:
91.-(1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.
[emphasis added]
The jurisdiction of this panel of the Board in this complaint comes from the emphasized words of the subsection. The complaint of the IBEW and the UA is that Pigott is assigning the work in dispute to persons in the Carpenters and the Labourers rather than to persons in the IBEW and the UA.
When the Board adjudicates work assignment disputes in the construction industry it may consider a variety of criteria in making a direction under subsection 91(1). The evidence and representations of the parties in this complaint bring into play the following criteria: collective bargaining relationships, jurisdictional agreements and arrangements, skills and training, economy and efficiency, employer past practice, employer preference and area past practice. However, having applied those criteria to the evidence before the Board, it finds that all but two of the criteria produce a neutral result; that is, they favour neither the complainants nor the Carpenters and the Labourers. Only two of them have any significance for deciding how the work in dispute should be assigned. They are collective bargaining relationships and area past practice. The first favours Pigott's assignment of the work to carpenters in the Carpenters union and construction labourers in the Labourers union. The second points in the opposite direction and favours the complainants' claim. The difficult question is which criterion should decide the assignment.
While all parties argued that several criteria favoured their positions on the assignment of the work in dispute, their principal arguments were focused on the two criteria which the Board has found are the only ones significant to deciding the proper assignment of the work in dispute. The parties' arguments illustrate quite starkly the tug-of-war between those criteria, although no party's argument gave any credence to the criterion which pointed in the opposite direction of its interest.
A substantial part of the argument of complainants' counsel was directed to showing that area past practice overwhelmingly favours assigning the work in dispute to IBEW electricians and UA plumbers. The particular past practice evidence on which counsel focused his argument was that during the 13 years prior to the St. Joseph's Hospital project, except for the Credit Valley Hospital, the kind of work in dispute at St. Joseph's invariably has been subcontracted to electrical or mechanical trade contractors and performed by IBEW electricians and UA plumbers employed by them. Moreover, counsel argued, the area practice developed without challenge from the Carpenters. The important weight to be given to that past practice is not diluted by the absence of any collective bargaining relationship between Pigott and the complainants, according to counsel. In this regard, he draws an analogy with the circumstances in Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143. The employer, Brunswick, who had control over the work in dispute (drywall taping) had assigned it to members of the Bricklayers union with which Brunswick had no collective bargaining relationship. Brunswick had acquired the work by subcontract from the general contractor on the project. When the Painters union which was bound together with Brunswick to a collective agreement which expressly covered drywall taping demanded that Brunswick assign the work to its members, the Bricklayers filed a work assignment complaint with the Board. The Board directed Brunswick to continue to assign the work to members of the Bricklayers union. Drywall taping had been performed in the local area where the dispute arose almost exclusively by members of the Bricklayers union. Therefore, even though Brunswick did not have a collective agreement with that union, the Board was persuaded that there was ". . .little reason to disturb what appears to be a successful and long lived work jurisdiction the exercise of which has caused no industrial unrest.".
Counsel for the complainants relies on Brunswick Drywall for the proposition that a collective agreement between an employer having control of the work assignment and the union claiming the work in a section 91 complaint is not critical to the success of the claim. Finally, counsel submits that, were the Board to uphold Pigott's assignment, the Board would be saying, to a large extent, as long as an employer like Pigott had a collective agreement with its employees, it could assign any work within its control to its employees no matter how valid the claim to the work of a union disputing the assignment, if that union and the employer are not bound to a collective agreement covering the work. According to counsel, that is not the kind of result which the Act seeks to achieve with section 91.
Counsel for the Carpenters, the Labourers and Pigott argued just as strenuously that the absence of any collective agreement covering the work between Pigott and the complainants and the existence of collective agreements between Pigott, the Carpenters and the Labourers, was by itself dispositive of the complaint without any weighing of the various criteria. The argument of counsel for the Carpenters, endorsed by the other two, ran as follows. A review of the Board's section 91 jurisprudence will not disclose any decision where the Board has altered a work assignment made by an employer to members of a trade union with which the employer has a collective agreement, when the trade union seeking the work assignment does not. That empirical view of the Board's decisions, counsel suggests, shows that a work assignment complaint under section 91 cannot succeed where the trade union holding the assignment has a collective agreement with the employer and the trade union claiming the work does not. That makes sense, according to counsel, because an employer who is ordered by the Board to assign work to a trade union with which it has no collective agreement can carry out the order only in one of two ways. The first is to seek employees directly from the trade union and the second is to subcontract the work to another employer. Because of the prevalence of union hiring halls in the construction industry and their manner of operation, the first alternative likely would result in the employer having to sign a collective agreement. That would make the Board's work assignment an order that the employer enter into a collective bargaining relationship. The second alternative would require the employer to enter into a contractual relationship with another employer who has a collective agreement with the successful trade union. Counsel argues that the Board does not have jurisdiction to direct an employer to enter into a contractual relationship with another employer in order to benefit a particular trade union or class of employees.
The argument of those three parties poses the difficult question of whether, in order for a trade union to have legitimate claim to particular work, must its claim to jurisdiction over that work be founded in collective bargaining rights expressed in the collective agreement covering the work with the employer who is or was assigning the work to persons in another trade union which has a collective agreement covering the work with that employer. None of those three parties referred the Board to a decision in which the Board was persuaded to uphold or alter the employer's assignment on the sole ground that the successful trade union had a collective agreement with the employer and the unsuccessful one did not. Nor did they rely on particular Board decisions to support their argument that an empirical view of the Board's decisions shows that a work assignment complaint under section 91 cannot succeed where the trade union holding the assignment has a collective agreement with the employer and the trade union claiming the work does not. Even if none of the Board's assignments have been decided on the grounds argued by the Carpenters, the Labourers and Pigott, they may still be correct that none of the Board's decisions have awarded disputed work to a trade union not having a collective agreement with the employer when the employer had assigned the work to a trade union which did have one. In the earlier cases, that well could have been the result of the Board's weighing of the various criteria which it considers when adjudicating work assignment disputes. Analytically, that is not quite the same as saying that not having a collective agreement with the employer who is assigning the work is fatal to a work assignment claim if another trade union claiming the work has one.
It is not surprising then, that no cases were cited to the Board which focus quite as starkly as the arguments and facts of this case do, on the issue of whether a trade union can successfully press a work assignment claim under section 91 of the Act if it does not have a collective agreement covering the work with the employer who is assigning the work if another trade union claiming the work has one. Even in Brunswick Drywall, supra, on which complainants' counsel relied in defence of this argument, the Board does not address the issue that the trade union to which the Board awarded the work did not have a collective agreement covering the work with the employer, while the one claiming the work did. It would appear that none of the parties in that case advanced the argument which faces this panel of the Board. In that respect, it is worthy of note that, of the nine other Board decisions on which counsel for the complainants' relied for a variety of purposes, five of them are cases where the section 91 complaint was triggered by a work claim of a trade union which did not have a collective agreement with the employer who had assigned the work. That did not deter the Board from entertaining all five complaints under section 91, as it is now, and deciding the assignment according to the balancing of various criteria. It would be surprising not to find many similar examples sprinkled throughout the same body of jurisprudence as the Carpenters, the Labourers and Pigott are relying on. In fact, in recent years, when jurisdiction complaints have been initiated as a defence to a grievance referral under section 124 of the Act, it is not unusual for the trade union claiming the work by means of its grievance to have no collective agreement with the employer who actually made the work assignment.
The fact that Pigott is bound together with the Carpenters and the Labourers to collective agreements which are the products of a collective bargaining relationship enforceable by statute and has no similar collective bargaining obligation to the complainants, raises a rebuttable presumption in favour of upholding Pigott's assignment to its carpenters and construction labourers who are members of the Carpenters and the Labourers. Pigott's collective agreements with the Carpenters and the Labourers give them exclusive bargaining rights for Pigott's carpenters and construction labourers and impose a legal obligation on Pigott to recognize those rights. That obligation would require Pigott to recognize, at the very least, that the Carpenters has some claim to the work listed in Schedule "A" of the carpenters provincial agreement and that the work listed arguably includes the work in dispute herein. While the claim in Schedule "A" does not express any better claim than that described in the complainants' collective agreements, the claim in Schedule "A" has the strength of being founded in collective bargaining rights. The labourers provincial agreement does not express an independent claim to the work in dispute. Pigott's obligation to the Labourers under clause 2.06 of that agreement is to assign to members of the Labourers the work of "tending carpenters". Therefore, if Pigott assigns the work in dispute to the Carpenters, it must also assign to the Labourers the associated "handling and conveying of materials". While the Labourers' claim is dependent upon the Carpenters' claim, it too has the strength of being founded in its collective bargaining rights for Pigott's construction labourers.
Pigott has no comparable obligation to the IBEW and the UA. How, then, can those unions legitimately claim that Pigott was obliged to assign the work in dispute to IBEW electricians and UA plumbers? If there is an answer to that question that is favourable to the complainants, it is to be found in the construction industry context in which the dispute arises.
The work in dispute is in the industrial, commercial and institutional ("ICI") sector of the construction industry in Metropolitan Toronto and nearby municipalities, as were all 17 hospital construction projects in evidence herein. The unionized part of the ICI sector of the construction industry in Ontario has been subject to the province-wide bargaining scheme of the Act since 1978. Pigott, the Carpenters, the Labourers, the IBEW and the UA are parties to whom the province-wide bargaining scheme applies. The collective agreements binding upon Pigott, the Carpenters and the Labourers are products of bargaining under that scheme. While the IBEW and the UA are not bound to collective agreements binding on Pigott, they are bound to the electricians provincial agreement and the plumbers provincial agreement together with electrical and mechanical contractors for whose electricians and plumbers the IBEW and the UA hold bargaining rights in the ICI sector. When Pigott and the other general contractors on 16 of the 17 hospital construction projects in evidence decided to subcontract the work which included the installing of the patient service modules, they subcontracted the work to electrical or mechanical contractors bound to the electricians and plumbers provincial agreements. As a result of those subcontracts, the patient service modules were installed by IBEW electricians and UA plumbers under their respective provincial agreements. Where the patient service modules were to house both electrical and medical gas services, they were installed by crews composed of equal numbers of IBEW electricians and UA plumbers, except on Pigott's Scarborough Centenary Hospital project where they were installed by IBEW electricians. Pigott was not obliged, and there is no evidence the general contractors on the other hospital projects were obliged, once having decided to perform the work, to let it to a subcontractor who would have the work performed by persons belonging to those two unions. The Carpenters union was aware of those subcontracts and the resulting work assignments to IBEW electricians and UA plumbers, but did not contest any of them. So, whatever claim to the work in dispute the Carpenters union has under Schedule "A" and clause 19.01 of its provincial agreement or the collective agreements which were in force prior to province-wide bargaining in 1978, it did not rely on those provisions to claim the work by way of grievances or work assignment complaints.
Having work performed by way of subcontract to trade contractors like the electrical and mechanical contractors on the hospital projects, is fairly typical of building construction in the unionized part of the ICI sector of the industry. That practice results largely from the historical development of a division of labour in the construction industry based on the principle of operational specialization, particularly in the United States and Canada.
The effect of the division of labour by trade or craft is clearly visible in the international unions which represent construction tradesmen in Canada and the United States. Approximately 20 of these unions joined together to form the Building and Construction Trades Department of the AFL-CIO. They are known as the building trades unions. Some 13 of these building trades unions have a presence in construction in Ontario. They also are the unions who hold the exclusive bargaining rights for their trades under the province-wide bargaining scheme in the ICI sector. Historically each building trades union has sought to organize all of the employees in its trade rather than all of the employees of an employer, as in the industrial union model. Each claims to itself exclusive jurisdiction in the construction industry for its trade arId the work performed by the trade. That is one means by which each of these unions seeks to assure that its members will retain a share of the available work in the industry. These are institutional claims and, while the building trades unions will seek to enforce their claims through protective provisions in their collective agreements, they have used whatever lawful means which they thought would be effective in the particular circumstances. A classic work jurisdiction dispute results when a union perceives "its work" being done by persons other than its members and seeks to change that circumstance by demanding that it be done by its members. Where, as here, it occurs in the unionized ICI sector of the industry, it is a struggle between two or more of the building trades unions over which union's members will do the work.
One of the effects of operational specialization on building construction is visible in the way employers have organized themselves to perform construction work. Typically there are general contractors and trade contractors. A general contractor usually deals directly with the purchaser of construction and takes charge of an entire project. The general contractor may employ bricklayers, carpenters, construction labourers, cement masons (cement finishers), operating engineers and rodmen, but may, and frequently does choose to perform only a limited amount of work with its own employees. Instead it will choose to subcontract packages of work to subcontractors, many of whom will limit the work they take to that which is performed by one or two trades. These are the trade contractors and their specialization is defined by the trades which they employ and, in the unionized part of the industry, by the trade unions representing those trades. In the unionized ICI sector in Ontario, an electrical contractor employing only electricians represented by the IBEW and a mechanical contractor employing only plumbers and steamfitters represented by the UA would be common examples of trade contractors. 16 of the 17 hospital projects in evidence in this proceeding are examples of general contractors subcontracting packages of electrical and mechanical work to electrical and mechanical trade contractors.
One of the obvious consequences of such practices is that trade contractors are largely dependent upon general contractors continuing their subcontracting practices. So are the trade unions which represent those trades dependent on the practices continuing for there to be work opportunities for their members, unless, of course, the general contractor employs them directly to do the work. Where, as has happened here, the general contractor assigns work directly to a trade different from the one which would have performed it had the general contractor subcontracted the work, it poses a difficult dilemma for the trade union whose members lose the work opportunity. For example, in the instant case, the real complaint of the IBEW and the UA is with Pigott (and the Carpenters and the Labourers), but they have no collective agreements with Pigott and, therefore, no grievance and arbitration process available to them. 'The agreements binding on the IBEW and the UA are with electrical and mechanical contractors who likely share with the two unions their interest in retaining jurisdiction over the work in dispute. When Pigott disagreed with the complainants' claim to the work, they pursued the claim by filing this complaint under section 91 of the Act.
Work jurisdiction disputes are a perennial problem for the construction industry. Seen from outside the industry, they appear to be senseless fights between members of the building trades family of unions about which union's members are to get a particular work assignment; or, to put it another way, about which union's members will be employed and which ones will be unemployed. But when such disputes are viewed in the context of the operational specialization prevalent of the construction industry, the claim of jurisdiction over a particular kind of work is but one of several mechanisms relied on by the building trades unions to protect their members' share of the available work. Protecting work jurisdiction claims is an integral part of the union security provisions in construction industry collective agreements. The closed shop hiring hall system and limiting the subcontracting of the claimed work to contractors with whom the union has a collective bargaining relationship complete the protection. This approach to job security might not be acceptable outside of the construction industry, but that is not reason to condemn its use in the industry. Those mechanisms both reflect and attempt to balance the economic and structural forces which operate in the construction industry.
This work jurisdiction dispute arises in the context of the unionized part of the ICI sector of the construction industry in Metropolitan Toronto and nearby municipalities. During the 13 years represented by the past practice evidence in this case, unionized contractors have been performing work in the sector and area with employees who are represented in collective bargaining by the building trades unions. Since January 1978, those relationships have been regulated by the province-wide bargaining scheme. Under that scheme, each building trades union can represent only employees in the trade for which it has been designated. It is in this context that the work in dispute has been performed on hospital projects exclusively by trade contractors under subcontract from general contractors, but for the single exception on the Credit Valley Hospital where the general contractor performed it with its own forces, members of the Carpenters. But for that exception, the work has been performed exclusively by IBEW electricians and UA plumbers employed by the trade contractors. That is the overwhelming past practice and clearly it is the product of the various contractor and trade union players in this segment of the construction industry playing out to the fullest extent the operational specialization characteristic of the industry.
Pigott previously has not assigned the work to the Carpenters and Labourers. Nor has it employed IBEW electricians or UA plumbers to perform the work. It has subcontracted the work to contractors who in turn have assigned it to IBEW electricians and UA plumbers. To this extent at least, Pigott has contributed to the area past practice of the work being performed exclusively by IBEW electricians and UA plumbers with the single exception of the Credit Valley Hospital project.
The letting of the work on the other projects to subcontractors and assignment of the work to the IBEW and the UA, was not contested by the Carpenters and Labourers. Clearly, there has been an acceptance of that subcontracting and of those assignments. With it there has developed a consistent and long standing practice of the IBEW and the UA installing patient service modules in hospitals where the modules will contain electrical and medical gas devices. Now, after 13 years of their members installing patient service modules on all but one of the hospital construction projects in Metropolitan Toronto and nearby municipalities, as a result of Pigott's assignment of that work to the Carpenters on St. Joseph's Hospital, the IBEW and the UA see their work being done by members of other trade unions. To them, that is a direct challenge to the stability of what they believe is their established work jurisdiction.
If the Carpenters, the Labourers and Pigott are correct and the IBEW and the UA cannot make a successful claim for the work in dispute under section 91 because they lack collective agreements with Pigott, there may well be no other lawful recourse open for the IBEW and the UA to establish that their consistent and long standing practice of installing patient service modules gives them jurisdiction over that work on hospital construction projects in the unionized sector of the construction industry in Metropolitan Toronto and nearby municipalities. From a practical point of view, they cannot gain jurisdiction by obtaining bargaining rights for Pigott's employees since it does not employ electricians and plumbers and the IBEW and the UA are prohibited by statute from representing any other trades in the ICI sector of the construction industry. If it is intended that the Board's jurisdiction under section 91 be used to fashion remedies which will lessen work assignment disputes in the construction industry, the result argued for by the Carpenters, the Labourers and Pigott would be counter to that objective. Furthermore, the result suggests that the Board would exercise its discretion under subsection 91(1) to refuse to inquire into a complaint if the trade union claiming the work in dispute does not have a collective agreement covering the work with the employer who is or was assigning it and the trade union to which it has been assigned does. From even the small sampling of the Board's jurisprudence on work assignment complaints relied on by the complainants, it would appear that the Board has not taken that approach. It would appear also that unionized employers in the construction industry and the trade unions which represent their employees either have accepted that a trade union can bring a work assignment complaint in those circumstances, or they have not persuaded the Board in any reported decision to refuse to inquire into such work assignment complaints. Thus, to this panel of the Board, it appears that, prior to this complaint, the Board has not ever refused to consider whether any of the other usual criteria were so compelling as to override the lack of a bargaining relationship between the union claiming the work and the employer who was assigning it.
As noted already, the opposing claims for the work in dispute in this complaint pose the difficult question of whether the Board would direct an assignment which would have the effect of taking work away from persons in the trade union with a collective agreement covering the work, to which the employer who is or was assigning the work is bound, and give it to persons in a trade union which is not bound to a collective agreement with the employer, on the basis of a consistent and long standing practice of that union's members performing that work. The Board has considered it appropriate to set out at some length its views in that regard in deference to the importance of the issue and the attention given to it by the parties. Having done so, however, in the final analysis there is a further element of this complaint which compels the majority of the panel to not decide the question in this case. That element is clause 402 of the electricians provincial agreement. The clause, in the majority's view, makes this complaint a request that the Board direct Pigott to subcontract the work to a third party who will assign the work to a crew composed of equal numbers of IBEW electricians and UA plumbers. This is evident from looking at the effect of directing Pigott to assign the work to such a composite crew. Were the Board to make that direction, Pigott should have the same choices available to it when complying with the direction as it had when it first received its contract from St. Joseph's; that is, to perform the installation of the patient service modules with its own forces or subcontract the work. Should Pigott choose to assign the work to a crew of its own employees composed of equal numbers of IBEW electricians and UA plumbers, it would be unable to do so because of the restrictive hiring practice of the IBEW, one of the joint complainants. Instead, Pigott would have to engage in some form of subcontracting.
Thus, while the complainants have jointly asked the Board to direct Pigott to assign the work to a crew composed of equal numbers of IBEW electricians and UA plumbers, the practical effect of the IBEW's hiring restriction is to make their complaint a request that the Board direct Pigott to subcontract the work to contractors who will assign the work in the requested manner. In these circumstances, the Board is of the view that Pigott's assignment of the work in dispute should not be disturbed.
Accordingly, pursuant to the provisions of subsection 91(1) of the Labour Relations Act, the Board directs that Pigott Construction Limited continue to assign to carpenters in the United Brotherhood of Carpenters and Joiners of America, Local 27 and to construction labourers in the Labourers' International Union of North America, Local 506, the transporting from a central storage area to the point of installation and installing patient service modules on the walls of patient rooms, including the fitting of face panels and final clean-up, on the St. Joseph's Hospital project.
DECISION OF BOARD MEMBER H. KOBRYN; April 10, 1990
The evidence presented to this Board shows that these patient modules have been installed in other hospitals in this area almost exclusively by a composite crew of equal numbers from IBEW Local 353 and the UA Local 46 as part of a subcontract. The subcontracts were let by the general contractor of the particular project to either an electrical contractor or to a mechanical contractor.
The only time the assignment of patient modules did not follow the past practice in this area was in this case and one other, where the architect for the project left the installation of patient modules in the general contractors section of the contract. In both instances when this happened the general contractor assigned the work to his own work force of carpenters and labourers. This disregard for past practice was what caused this jurisdictional dispute and the subsequent complaint.
Based on the evidence before this Board and using the language the parties understand, the work of the installation of patient modules should have been assigned to the unions making the complaint, which are the IBEW Local 353 and UA Local 46. The work shall be performed by a composite crew of equal numbers from both of the above named locals.
Further, should the general contractor, as the result of this decision, decide to do this work with its own work force, then the applicant unions are obliged to supply the members if and when requested.
Further, it is the function of this Board to determine the question as to the proper assignment of the work. It is not the function of this Board to determine who the employer of the employees will be once the decision on the proper assignment of the work has been determined by this Board.