[1991] OLRB Rep. March 292
2888-90-FCA United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800, Applicant v. Bonik Incorporated, Respondent
BEFORE: R. A. Furness, Vice-Chair, and Board Members H. Kobryn and J. A. Trim.
APPEARANCES: Joanne L. McMahon and Michael Zangari for the applicant; B. Nickolic for the respondent.
DECISION OF THE BOARD; March 28, 1991
[1]. In a decision dated January 30, 1991, in Board File 2702-90-FC, the Board directed that the settlement of the first collective agreement between the parties shall be by arbitration. In that decision, the Board also noted the agreement of the parties that the Board shall arbitrate the settlement of the first collective agreement.
[2]. The hearing with respect to the settlement of the first collective agreement by arbitration was held in Sudbury on February 20, 1991. The Board entertained the evidence and representations of the parties.
[3]. The applicant filed with the Board a proposed collective agreement that it was prepared to execute. The respondent did not file a proposed collective agreement that it was prepared to execute.
[4]. The parties agreed upon some of the provisions of the proposed collective agreement which had been filed by the applicant. The articles of the proposed collective agreement which were in dispute were as follows:
(i) Duration of Agreement
(ii) Article 3 - Geographic Scope
(iii) Article 5.1 - Payment of Wages
(iv) Article 7.2 - Lay-Off
(v) Article 11.1 - Sub-Contracting
(vi) Article 17 - Welder's Qualifications
(vii) Article 23.8 - Job Stewards
(viii) Article 25.1 - Job Site Accommodation
(ix) Article 25.3 - Job Site Accommodation
(x) Article 32.2 - Apprentices
(xi) G. - Industrial Fund
(xii) Additional Wording proposed by the Respondent.
[5]. The applicant has proposed a collective agreement which is in a standard form and has been signed by other employers engaged in residential construction. The signing of standard form or identical collective agreements between a trade union and employers engaged in the same type of construction is in recognition of the concept that in so far as wages and conditions of employment are concerned these elements have been removed from the competitiveness of these employers. Such a collective agreement becomes a neutral document. If it were otherwise and such employers were able to sign different collective agreements with the trade union, then the system of collective bargaining could not be sustained. With identical collective agreements each employer competes for available construction work based upon matters outside the collective bargaining relationship such as the skill and efficiency of management including the effective use of capital and equipment, reputation, efficient utilization of employees, supervision, contacts and skill in estimating jobs. The standard form or identical collective agreement secures the attainable objectives of a trade union and the employees in the bargaining unit, and, ensures that with respect to wages and conditions of employment such employers compete with each other on what may be referred to as a level playing-field. The Board now considers each of the articles which are in dispute.
[6]. The proposal of the applicant in (i) is as follows:
DURATION OF AGREEMENT
This Agreement shall be effective for a period of two years from the day of,1991 until the day of, 1993 and thereafter from year to year unless it is terminated by either party giving to the other party written notice that the Agreement shall be amended or terminated.
Such notice shall be given within ninety (90) days of, and not less than sixty (60) days prior to, the expiration of this Agreement.
The applicant argued that the proposed collective agreement should coincide with the collective agreement in the industrial, commercial and institutional sector and terminate on the same date, namely, April 30, 1992. The respondent agreed that the proposed collective agreement should be in force until April 30, 1992, without any automatic extension. The position of the applicant would mean that the proposed collective agreement would be for a period of less than two years. In our view it is not possible to make such an award. By the operation of section 40a(18) the collective agreement is to be effective for a period of two years. The position of the respondent completely misunderstands the position under the Labour Relations Act that even where a collective agreement terminates by its terms the bargaining rights nevertheless continue.
[7]. The proposal of the applicant in (ii) is as follows:
ARTICLE 3- GEOGRAPHIC SCOPE
This Agreement shall be applicable to and effective within the jurisdictional area of Local 800, and shall inure to the benefit of, and be binding upon the parties hereto, and the members of the parties hereto, and upon all other parties executing this Agreement.
Complete district of: Manitoulin, (excluding portion of Manitoulin Island, West of a north to south line running 5 miles east of and parallel to 83 Longitude) Nipissing and Timiskiming.
Complete district of: Parry Sound, EXCEPT TOWNSHIPS Christie, Foley, Conger, Humphrey, Ferguson, McDougal, McKeller and Carling.
Complete district of: Cochrane, Kenora (Patricia Portion), Algoma and Sudhury except portions of the WEST BOUNDARY.
*West Boundary
Starts at a point, extreme north latitude, Hudson Bay, and 29.7 miles east of 83 longitude then south to 49 latitude - west to 5 miles east of 83 longitude and south to 30 miles north of 45 latitude.
The applicant seeks to have the geographic scope of this collective agreement the same as the standard form collective agreement. The respondent argued that the proposed collective agreement should not cover a greater geographic then the geographic area contained in the certificate of the Board which gave rise to the bargaining rights of the applicant and which underlie the instant application. In the decision of the Board dated April 11, 1989, a certificate issued to the applicant with respect to all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all sectors of the construction industry within a radius of 57 kilometers (approximately 35 miles) of the City of Sudbury Federal Building, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. The geographic scope in the standard form collective agreement is as referred to earlier in this paragraph and is the jurisdictional area of the applicant. The geographic area in the certificate which was issued to the applicant is the Board's geographic area #17. It may well be that it has been the practice of the applicant to successfully expand the geographic area in a certificate to its own jurisdictional area by means of voluntary recognition. However, the securing of an expanded geographic scope in a collective agreement as a matter of a private agreement is one thing, the securing of such an expanded geographic scope in this application is quite another thing. In our view the position of the applicant is not sustainable. In United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776, the Board held that while a trade union may demand extended voluntary recognition and an employer may demand reduction of the geographical jurisdiction of the trade union, neither can take such issues to the point of impasse and make them the subject matter of a strike or lockout, because neither a trade union nor an employer may use economic sanctions to expand or retract bargaining rights. Given the jurisprudence of the Board under section 15, it is difficult to see why the position of the applicant should prevail over the position of the respondent. In our opinion the position of the respondent prevails over the position of the applicant.
[8]. The proposal of the applicant in (iii) is as follows:
ARTICLE 5- PAYMENT OF WAGES
5.1 Wages shall be paid by cheque or cash not later than Thursday of each week. If paid by cheque on Thursday, and a Holiday occurs on Thursday, payment by cheque shall be on the preceding Wednesday.
The respondent would prefer to pay its employees every two weeks. The members of the applicant are accustomed to being paid every week and the Board finds no reason to interfere with that arrangement.
[9]. The proposal of the applicant in (iv) is as follows:
ARTICLE 7- LAY OFF
7.2 The employee shall be paid in full, no later than two (2) hours prior to the end of the work day or work shift.
The respondent indicated that this clause is unduly onerous. Other contractors appear to have adjusted to a scheme whereby laid-off employees are paid in this way. The position of the applicant prevails on this article.
[10]. The proposal of the applicant in (v) is as follows:
ARTICLE 11 - SUB-CONTRACTING
11.1 Recognizing that the Contractor can sub-contract, no Contractor shall directly or indirectly sublet or sub-contract or otherwise transfer to any employee or any other employer not signatory to a U.A. agreement any of the work coming under the jurisdiction of this Agreement.
This provision is a standard provision in collective agreements in the construction industry and is designed to prevent an employer from sub-contracting to a non-union employer. The respondent did not advance any valid reason for deleting this provision. The position of the applicant prevails with respect to this article.
[11]. The proposal of the applicant in (vi) is as follows:
ARTICLE 17- WELDER'S QUALIFICATIONS
17.1 Contractors requesting welders from the Union shall make known the type of welding that is required. The welders requested shall show adequate proof to the Contractors of previous experience, prior to testing, for the type of welding to be performed, or no remuneration shall be required.
17.2 Welders shall be paid from time of hire to completion of test at the regular rate of pay including all applicable benefits.
17.3 The Contractor shall provide proper shelter for the test, and test all men on the job site or in the employer designated shop. Welders working under the jurisdiction of the local Union shall cut and grind their own coupons on black pipe.
Alloy coupons may be sent out to be cut by power-saw and shall be returned for grinding by the member working the test.
If a member of the local Union is required to service a welding machine, then the proper safety equipment will be supplied for handling fuel.
The position of the applicant with regard to the testing of welders appeared to be reasonable and prevails over the position of the respondent over his apprehension over the supply of welders. The position of the applicant prevails.
[12]. The proposal of the applicant in (vii) is as follows:
ARTICLE 23- JOB STEWARDS
23.8 Job Stewards shall have preferred seniority in the event of a reduction in work force where his qualifications are equal to the work to be performed.
It was the position of the applicant that this article is there for the protection of the steward who is the representative of the trade union. It was the position of the respondent that a steward could be laid off if there was no work for him. In our opinion there is some protection in the article for the respondent in what is a very common provision in collective agreements in the construction industry. The position of the applicant prevails.
[13]. The proposals of the applicant in (viii) and (ix) are as follows:
ARTICLE 25 - JOB SITE ACCOMMODATION
25.1 The Contractor agrees to provide on projects, sufficient lunch and changeroom facilities which shall be properly heated and kept in a clean and sanitary condition by both workmen and Contractor.
25.3 Decent toilets that are heated shall be provided or made available for the use of workmen from the start of the project and within reasonably easy access of their places of work so that there is at least one toilet for every twenty or fewer workmen on the project at any one time.
As the applicant pointed out, much of the wording here is to be found in the Occupational Health and Safety Act and regulations thereunder for construction projects. This fact, of course, does not guarantee the article as appropriate in the proposed collective agreement. The respondent objected to the article on the ground that it was too onerous. Having heard of the flexibility with which this article is interpreted, the Board finds that the provisions of this article are not too onerous and are to be included in the proposed collective agreement.
[14]. The proposal of the applicant in (x) is as follows:
ARTICLE 32- APPRENTICES
32.2 The Apprenticeship ratio shall be set out by Sudbury and District Joint Apprenticeship Board. All Employers of Apprentices shall satisfy the Sudbury and District Joint Apprenticeship Board or the North-Eastern Joint Apprenticeship Committee of their qualifications to train Apprentices. Every third (3rd) member hired may be an Apprentice.
The respondent wanted to have a fifty-fifty ratio rather than a proportion of one in three. The applicant takes the position that this would give the respondent a competitive advantage. The respondent failed to advance any plausible reasons for a special article for itself. The position of the applicant prevails.
[15]. The proposal of the applicant in (xi) is as follows:
G. INDUSTRIAL FUND
Each Contractor bound by this Agreement shall contribute twenty five cents per hour for each hour earned by each employee covered by this Agreement and remit such contributions with Health, Welfare and Pension contributions.
Effective July 4, 1990……………25
Benefit Contributions payable hereunder. Such amounts on receipt shall immediately be paid to the Association as each Employer's contribution for the general purposes of the Association including the costs of negotiating and administering this Agreement.
This provision is used to fund the activities of employers including the cost of negotiating the standard form collective agreement. The Board finds no reason to give the respondent a "free ride" on the industrial fund. The position of the respondent appears to be based upon philosophical and financial reasons. There is nothing before the Board which merits special treatment of the respondent. The position of the applicant prevails and this provision is to be included in the collective agreement.
[16]. The proposal of the respondent in (xii) is as follows:
The existing work that is committed to sub-contractors and is under construction and is under construction at present is not included in this agreement.
This is a proposal to add and not vary language in the proposed collective agreement. The proposed wording is imprecise and susceptible of various meanings. However, it is clear from the representations of the respondent that it is designed to secure special treatment. The Board finds no reason to place the respondent at an advantage with respect to any competitors, either actual or prospective. Moreover, the respondent has been aware of its outstanding bargaining obligations for almost two years. In all the circumstances, the Board is not prepared to confer an advantage on the respondent and the clause will not be included in the collective agreement.
[17]. Attached as an appendix to this decision is the collective agreement which is binding on the applicant and the respondent. The respondent ought to be bound by the terms and conditions of any collective agreement which may be negotiated to renew the standard form collective agreement (other than the expanded geographic area of the standard formagreement), until this settled agreement expires on March 28, 1993.
[Appendix omitted: Editor]