[1991] OLRB Rep. February 185
3227-88-JD United Brotherhood of Carpenters and Joiners of America, Local 2222, Complainant v. Electrical Power Systems Construction Association, Ontario Hydro, Ontario Sheet Metal Workers' Conference on its own behalf and on behalf of Local 473, Respondents
BEFORE: R. A. Furness, Vice-Chair, and Board Members C. A. Ballentine and W. N. Fraser.
APPEARANCES: David A. McKee, Bryon Black and John Marchildon for the complainant; C. C. White, Steven L. Moate, Sheila Goldsworthy and David T. McKee for Electrical Power Systems Construction Association and Ontario Hydro; S.B.D. Wahl, Robert Brown and George Ward for Ontario Sheet Metal Workers' Conference on its own behalf and on behalf of Local 473.
DECISION OF THE BOARD; February 18, 1991
The complainant has filed a complaint under section 91 of the Labour Relations Act and has requested that the Board issue a direction under section 91 with respect to the assignment of certain work.
In a decision dated June 1, 1990, the Board stated, in part as follows:
For reasons to be given in writing, the Board makes the following direction pursuant to the provisions of section 91 of the Labour Relations Act:
Ontario Hydro shall assign to members of Sheet Metal Workers' International Association, Local 473, the installation of external sheet metal siding (Vie West 5000 Series); the installation of interior sheet metal siding (Vie West 5000 Series L800); and the installation of metal cap screws to fasten such sheet metal to the temporary change facility at Bruce Nuclear Power Development.
The Board now sets forth the reasons for its decision dated June 1, 1990.
In Anchor Shoring Limited, [1974] OLRB Rep. Aug. 528, the Board at page 531 listed the criteria which may be used in a jurisdictional dispute as collective bargaining relationships, skills and training, economic considerations, employer's practice and area practice. There is no dispute that the complainant and Ontario Sheet Metal Workers' Conference on its own behalf and on behalf of Local 473 (the "sheet metal workers") are bound by separate collective agreements with Ontario Hydro. The complainant and the sheet metal workers possess the skills and training with respect to the work in dispute. There was nothing before the Board with respect to economic considerations. The parties were apparently of the view that the resolution of this jurisdictional dispute depended upon the criteria of practice. There was no real dispute as to the practice of Ontario Hydro on the area practice. There were clearly great differences among the parties concerning the interpretation to be given to the circumstances surrounding such practices.
In the course of their arguments the parties referred to the length of the respective collective bargaining relationships, job mark-up meetings, recent decisions of this Board, temporary buildings versus permanent buildings, the amount of work involved, the alleged acquiescence by the sheet metal workers to the work being performed by members of the complainant and the conduct of certain employees of Ontario Hydro.
The complainant and Ontario Hydro have been covered by a series of collective agreements for some twenty-five years. These collective agreements have been between the Electrical Power Systems Construction Association ("EPSCA") and the Ontario Allied Construction Trades Council (the "Council"). The sheet metal workers were not covered by these series of collective agreements. Until as recently as the end of 1982 Ontario Hydro and the sheet metal workers were not covered by a collective agreement. In that year Ontario Hydro and the sheet metal workers became bound by a collective agreement between EPSCA and the Ontario Sheet Metal Workers' Conference for Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562. However, it was not until 1985 that Ontario Hydro directly hired sheet metal workers.
The sheet metal workers did not initially attend the pre-job mark-up meetings at the Bruce Nuclear Power Development (the "project"). However, in 1987, the Ontario Sheet Metal Workers Conference referred a grievance to the Board under the provisions of section 124 of the Labour Relations Act with Ontario Hydro and EPSCA named as the respondents. In Ontario Hydro, Electrical Power Systems Construction Association, Board File No. 2405-86-M, unreported decision dated September 12, 1987, the Board was required to interpret Article 8.2 of the collective agreement between EPSCA and the Conference. Article 8.2 provided as follows:
8.2 Regular mark-up meetings will be conducted for each project and for transmission and transformation construction at times appropriate for the work in progress. The purpose of these mark-up meetings is to indicate to the Unions the work which is about to be carried out by the Employers in order to minimize the potential for jurisdictional disputes.
EPSCA will provide written notice to the Union as far in advance as possible of markup meetings.
The Union will attend these mark-up meetings, and every effort will be made to settle questions of jurisdiction before the dates that management indicates the work is expected to commence.
In the grievance the Board was asked to determine whether Ontario Hydro and EPSCA has violated the collective agreement by not holding a mark-up meeting with respect to the flashing on a hanger storage building. The Board found that at the end of 1982 some of the work normally handled by members of the sheet metal workers was being performed by employees represented by other trade unions. Upon the Conference obtaining bargaining rights certain informal adjustments were made over a period of time in which the Conference's members were assigned some of the work previously performed by members of other trade unions. The issue before the Board in that case was whether the failure to hold mark-up meeting with respect to the flashing on the hanger building constituted a violation of Article 8.2. It was the position of Ontario Hydro and EPSCA that mark-up meetings were only required when the work in question both had not been previously assigned and was likely to be the subject of competing jurisdictional claims. The Board concluded that there had indeed been a violation of Article 8.2 in failing to hold a mark-up meeting.
- The effect of the decision of the Board in Ontario Hydro, Electrical Power Systems Construction Association, supra, appeared to cause Ontario Hydro to review the way it considered the jurisdictional claims of the Conference with respect to work which had been assigned at markup meetings before the Conference became a party to a collective agreement with Ontario and EPSCA. In a letter to EPSCA's representatives dated October 2, 1987, EPSCA's grievance officer S. Goldsworthy stated:
Roof Hashing Arbitration
Darlington GS
Board File #2405-86-M
Please find enclosed an arbitration in the above-noted matter.
The Sheet Metal union grieved regarding the failure to hold a mark-up meeting for roof flashing on a hanger storage building at Darlington. Management contended that since the work had been performed previously by the Carpenters, a mark-up meeting would have had a predetermined outcome, that being the work would be assigned to and performed by the Carpenters.
The Board concluded that because the work was originally performed by the Carpenters prior to the Sheet Metal Union having an agreement with EPSCA, and because no mark-up meeting was held for this work, the Sheet Metal Union had no opportunity to present their case in the manner contemplated by the Work Assignment article. Management was thus found to be in violation of Article 8.2 by failing to hold a mark-up meeting.
The Board did not believe there was a mutual acceptance of Ontario Hydro's interpretation and that the commitment to hold a mark-up meeting could be bypassed by virtue of clear-cut past practice in view of the fact one participant had no opportunity to claim the work assigned previously. (original emphasis)
In future, if a particular union has not had an opportunity to claim work a mark-up meeting must be held for the work. Practically, this would apply to the Sheet Metal Union, because of the absence of an agreement with them prior to 1982.
The issue of damages was not addressed as the applicant although aware of it, did not address the problem for years.
If you have any questions about the decision, feel free to call me.
It was the evidence of Thomas Williams, Ontario Hydro's field manager at the project that, as a result of the decision in Ontario Hydro, Electrical Power Systems Construction Association, supra, and other decisions of the Board which required Ontario Hydro to mark-up its work, he looked from Goderich to Owen Sound for area practice. He explained that his decision that the work ought to be assigned to sheet metal workers was based upon decisions of the Board, the fact that sheet metal workers had not been covered by a collective agreement until 1982 and to the fact that there had not been direct hires of sheet metal workers until 1985. He informed the board that he had considered four criteria namely, decisions of record, international agreements, area practice and employer past practice. Mr. Williams concluded that the first two criteria were of no assistance to Ontario Hydro in making an assignment. In his view it came down to the third and fourth criteria.
Mr. Williams concluded that the great majority of sheet metal siding performed in the geographic area had been installed at the project and that 99.9% of the sheet metal siding had been installed by contractors and sub-contractors. The members of the complainant were assigned a very small amount of installation of sheet metal siding on the basis of field assignments. Nevertheless, the complainant sought to make a distinction between sheet metal siding which was installed on permanent buildings as opposed to temporary buildings (sometimes expressed as capital buildings as opposed to non-capital buildings) and pointed to and claimed sheet metal siding installed on temporary structures. The position of the complainant on this claim has to be considered in the light of the fact that such assignments were typically made on the basis of field assignments. Such field assignments were made by foremen without mark-up meetings. Moreover, the practice of Ontario Hydro has to be looked at in the light of the reality that Ontario Hydro did not have sheet metal workers as employees on the site to dispute assignments or to challenge the distinction between permanent buildings as opposed to temporary buildings.
Mr. Williams concluded that area practice outweighed employer past practice. He was aware that 99.9% of sheet metal siding and roofing had been performed by sheet metal workers and that only a minuscule portion of such sheet metal siding and roofing had been put on by Ontario Hydro. Faced with the clear preponderance of the third criteria over the fourth criteria~ Mr. Williams made the assignment of the work to sheet metal workers.
In our view, the approach by Mr. Williams and Ontario Hydro was logical and fair and the assignment which was made in favour of members of Sheet Metal Workers' International Association, Local 473 was correct.
The Conference requested the Board to make any direction provincial in scope. This request was opposed by the other parties. The Board does have the jurisdiction to expand the geographic scope of its directions by virtue of section 91(2) of the Labour Relations Act. The Board has declined to make the direction provincial in scope. The complaint before the Board was heard on the basis of work performed at the project and not on the basis of work performed throughout Ontario. In these circumstances, the direction is of necessity to be restricted to the project.