[1991] OLRB Rep. September 1041
0947-91-G Sheet Metal Workers' International Association, Local 392, Applicant v. The Electrical Power Systems Construction Association, E Z Line Construction Ltd. (#882967 Ontario Ltd.), Respondents v. Lake Ontario District Council, United Brotherhood of Carpenters & Joiners of America, Intervener
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members J. Lear and P. V. Grasso.
APPEARANCES: Jerry Raso and Mark English for the applicant; John Saunders and Mama Shecter for the respondents; David McKee and Tom Hill for the intervener.
DECISION OF THE BOARD; September 3, 1991
I
In this decision the unions potentially affected will be referred to, in abbreviated form, as the "Labourers", "Carpenters" and "Sheet Metal Workers".
This is an application under section 124 of the Labour Relations Act. The Sheet Metal Workers contend that the respondent employer has contravened the "work assignment" provisions of a collective agreement by which it is bound. Those provisions purport to define the kinds of work which must be assigned exclusively to Sheet Metal Workers. In the Sheet Metal Workers' submission, the employer contravened those provisions, when it assigned certain work to someone else.
The facts are not in dispute.
In late May there was a "mark-up meeting" to determine the distribution and assignment of work on a Hydro project. A number of unions were involved in that discussion. The work in dispute is the construction of a "meter shed", which is a small metal structure very much like the metal garden sheds which are sold for household use. The shed was assembled by a carpenter and labourer working together.
The shed consists of prefabricated metal sheets, brackets, and parts which are fastened together with screws. The assembly does not require any sophisticated skills or tools, and can be accomplished in a matter of hours. We are therefore concerned in this proceeding with about two hundred dollars' worth of work.
The Sheet Metal Workers contend that the assembly of this meter shed should have been assigned to them - essentially because it was made of metal and, it is said, sheet metal workers customarily construct ancillary buildings of this kind. The Carpenters, intervening, assert that there is a well-established practice of assigning the work to "mixed crews" of carpenters and labourers - presumably because such ancillary structures were once made of wood, and because employers find the mixed crew economical. The Carpenters submit that the amount of work is so insignificant that it should not be the spark igniting potentially expensive litigation; however, counsel explained that if the Carpenters did not intervene to protect their claim to this work it might later be taken as an admission that the work assignment was improper, or that the Sheet Metal Workers' claim was valid.
The Labourers' Union has had no notice of this proceeding, and, therefore, has not had the opportunity to intervene.
The employer asserts that, at the initial mark-up meeting, it took into account the criteria for work assignment which the Board has affirmed (i.e. the existence of bargaining rights, local area practice, collective agreement provisions, inter-union constitutional arrangements, etc.) and that it properly concluded that a mixed crew was appropriate. The employer submits that it is the "meat in the sandwich", caught in the middle between rival union claims which it tried to balance, as best it could, in accordance with established criteria. The employer supports the Carpenters' submission that the body of work in dispute is so small that it does not warrant a potentially time-consuming and expensive jurisdictional dispute inquiry. And to put that submission in perspective, the Board notes that the public and private costs of this proceeding already exceed by many times the value of the work in question.
II
- Trade unions in the construction industry are primarily organized on the basis of craft, with some unions tracing their origins back to the nineteenth century. At one time, perhaps, craft skills may have been more distinct and distinguishable than they are today, making the allocation of work among unions relatively easy. But that is no longer the case. Technological change, new building materials, and new building techniques have eroded or modified the skills central to some of the crafts, and blurred the distinctions between others. Some building methods no longer need the experience or expertise formerly required in particular areas, and others have shifted the need from one craft to another. The result has been inter-union rivalry and jurisdictional disputes; and, in the absence of any effective process for resolving those disputes "in the union family", the task has fallen to the Board under section 91 of the Act. Section 91(1) reads as follows:
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, it 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.
Of course, litigation is an imperfect, time-consuming and costly process for the parties and the public; however, at the present time, neither the law nor the labour relations community has developed a more economical alternative.
In the instant case, there is no doubt that the present controversy is, in essence, a jurisdictional dispute. The Sheet Metal Workers claim work under their collective agreement, which was assigned to a carpenter and labourer, and paid for under their collective agreement. In our view, this matter should be dealt with by application under section 91, so that all interested parties will have an opportunity to participate in the proceeding, and the Board will have the enhanced remedial authority provided by that section. There is much to be said for the Carpenters' plea that relatively minor work assignments should not be permitted to mushroom into costly litigation; and, it may well be that a simple notice is sufficient in such cases to rebut any future inference that a union has acquiesced in an adverse work assignment. However, seemingly insignificant work assignments can sometimes involve important principles, and that is what the Sheet Metal Workers assert here. It is up to the parties to do the necessary cost/benefit analysis and determine whether litigation is really necessary.
For the foregoing reasons, the application under section 124 is adjourned pending the filing of a jurisdictional dispute. The parties' attention is directed to Practice Note 15. The parties will have 30 days to make the necessary filings, and, failing that, the section 124 application will proceed.