United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 v. Pigott Construction Limited, 1992 CanLII 6359

[1992] OLRB Rep. June 748

File No.: 2663-87-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Complainant, v. Pigott Construction Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener #1 and Labourers' International Union of North America, Local 506, Intervener #2

BEFORE: M. G. Mitchnick, Chair, and Board Members J. Lear and H. Kobryn.

APPEARANCES: L. C. Arnold and Vince McNeil for the complainant; R. A. Werry and J. C. Keyes for the respondent; J. J. Nyman and Lorenzo Monaco for intervener #1; John Moszynski, Manuel Silva and Jim Johnstone for intervener #2.

DECISION OF THE BOARD; June 25, 1992

Decision

1. This is a work-assignment complaint brought under section 93 (formerly 91) of the Labour Relations Act. The complaint was filed on December 23, 1987, although for a variety of reasons, including principally the manner in which parties have come to put evidence of "area practice" before the Board, the case has taken in excess of 4 years from that point to reach its final day of hearing. The work itself on this job was completed in 1988. The claim by the complainant Local 46 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the Plumbers"') is for the handling and installa­tion (including the backing) of standard washroom accessories at what is described as "the St. Joseph's Hospital Renovation and Addition Project" in Toronto. While the parties were in dispute as to how to characterize the various accessory items involved in this project, for the purpose of the declaration at issue here we are prepared from the photographs submitted to describe them as toi­let paper dispensers, grab bars, sanitary napkin dispensers and disposals, paper towel dispensers and disposals, towel and soap dispenser units with mirrors, travelling shower-heads, towel racks and slop-sink utility shelves.

2. Typical of general contractors, Pigott directly employs both carpenters and labourers, for whom it has collective agreements with both the United Brotherhood of Carpenters and Joiners of America ("the Carpenters"') and the Labourers' International Union of North America ("the Labourers"') respectively. Pigott never employs plumbers directly, and accordingly has no collec­tive bargaining relationship with the complainant or any other Union that might represent the trade of plumbers. To have this work performed by plumbers, therefore, Pigott has placed itself in the position of having to have the work done by a subcontractor, and that raises for Pigott concerns about cost, and its ability to entirely control and schedule the deployment of the workforce. As a result, Pigott's own preference is to "do the work itself', which means engaging the services of its own carpenters (tended in the usual way by labourers), and certainly its "predominant" practice (with exceptions that will be noted) is exactly that. The installation of the accessories is typically done in the latter or "finishing" stages of a job, and this mode of work assignment also serves to provide work for some of the "steady-eddies" in the general's work force that are maintained on the job site for various purposes from start to finish.

3. The reality (and source of the dispute) is, of course, that the task of properly affixing these items to a wall is hardly central to the core skills of either of the two crafts here contesting it; it obviously can be (and is), in other words, performed by members of either craft. As a result, the struggle between Plumbers and Carpenters over who should do this washroom work is neither new nor confined to the present jurisdiction. In fact, the dispute is so long-standing and intense that this very issue came to be addressed at the International level of both trade unions, with the result that an "agreement of record" can be found as far back as 1939 in the "Green Book" (of the Building and Construction Trades Department's "Plan for the Settlement of Jurisdictional Disputes"). A similar but more detailed version appears in the Record of Construction Craft Jurisdiction Agree­ments as follows:

Backing and Accessories - June 29, 1965

AGREEMENT

June 29, 1965

BACKING and ACCESSORIES

BACKING

1. The installation of all backing for plumbing fixtures and their accessories not affecting the structure shall be the work of the United Association.

2. Cutting and chasing which does not affect the structure shall be the work of the United Association.

3. The installation of all backing for plumbing fixtures and their accessories which affects the structure shall be the work of the Carpenters.

4. Cutting and chasing which affects the structure shall be the work of the Carpenters.

ACCESSORIES

1. Accessories which are directly related to plumbing fixtures such as grab bars, paper holders, towel racks and bars, utility shelves, sanitary paper holders, glass, cup, soap holders, soap dispensers, sanitary napkin dispensers and disposals, combination towel dispenser and disposals, shall be the work of the United Association.

2. Accessories which are not directly related to plumbing fixtures such as laundry chutes, hampers, clothes hooks and lines, medicine cabinets, magazine racks, storage cabi­nets, cabinet shelves shall be the work of the Carpenters.

For the United Brother- For the United Asso­- hood of Carpenters and ciation of Journeymen Joiners of America and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada

"M. A. Hutchison" "Peter T. Schoemann"

General President General President

"R. C. Limigatos" "Frank I. Lucas"

"Leon W. Greens" "Thomas J. Dugan"

"Raleigh Rajoppi" "Joseph T. Perry"

"Patrick A. Hogan" "Mack C. Roberts"

"N. E. McDaniels" "Ian D. Escobar"

For some 20 or so years from that further agreement there appears from the evidence to have been a kind of "truce" over the issue, at least in the area relevant here, Board Area 8 in the Province of Ontario. That is not to say that the installation of washroom accessories in the industrial, commer­cial and institutional sector was done throughout that period exclusively by the Plumbers'. Indeed, the Plumbers' appear to have been quite practical about the jobs in which they insisted that the aforesaid international agreement on washroom accessories be applied. Many jobs, although large in terms of the structure, involved few washrooms, where it would make little sense to bring plumbers back just for the finishing stage, as opposed to allowing the general to complete the job with its own on-site forces. Similarly, many jobs of this smaller variety were performed either directly or on subcontract by specialty carpentry firms, and in fact would be of a size where officials of another Union might well not even know about them. In both of these situations the Carpen­ters' Union built up a very substantial history of their members doing this work. Those types of jobs, having a limited number of washrooms, make up by far the greater part of the Carpenters' "area practice". There are, however, a number of the larger, "high-profile" type of projects on the list for the Carpenters' as well - although the greater number of those we note occurred after the battle lines had been drawn, from 1987 onwards, around the present project in dispute. Sean O'Ryan, the current Business Manager of the complainant, and a business representative since 1980, explained in his testimony that until recent events there had existed between his Union and the Carpenters' a certain amount of "live and let live", and that if the Plumbers' became aware of a job after the Carpenters' had already gotten under way, they sometimes decided not to make an issue over it. On the other hand, the Plumbers' evidence is uncontradicted that, until these recent events, each and every time the Plumbers' did find it appropriate to push the issue of the installa­tion of washroom accessories on a job, the international representatives of the Carpenters' Union acknowledged that the 1965 agreement was determinative, and the work was assigned (or re-as­signed) to the Plumbers' on that basis. James Boyle, now a business representative for the com­plainant but then a plumber in the trade, testified, for example, that that happened in 1971 at the Manulife construction project in Toronto, and that the work was turned over to the mechanical contractor even after the Carpenters' had started. Mr. Boyle testified that he and other members of the Plumbers' Union were assigned the work on numerous large jobs from that point forward, without there ever being a complaint or a dispute from the Carpenters' Union. In contrast to the Plumbers' evidence, in fact, there is no occasion in the other parties' evidence where the work in dispute had been the subject of an initial assignment to the Plumbers', and the Carpenters' raised a complaint and effected a change.

4. The evidence of the other U.A. witnesses, outlining the large number of jobs on which members of the Plumbers' Union have been engaged through mechanical contractors to perform this work in Board Area 8, is to the same effect as that of Mr. Boyle. Bob Watson, until his retire­ment last year the senior international representative of the Plumbers' in Ontario, testified that if and when disputes over the washroom accessories did arise, he would deal with them at the level of his Carpenters' counterpart, John Carruthers, and Mr. Carruthers always would honour the 1965 agreement. At one point in 1978, in fact, after a dispute had once again been resolved on that basis, the Plumbers' business representative suggested to Mr. Watson that a reaffirmation of the Internationals' agreement as effective and applicable might be useful, and Mr. Carruthers and Mr. Watson met in Toronto and signed the following:

November 3rd, 1978

TO WHOM IT MAY CONCERN:

This will confirm a meeting held in Toronto on November 3rd, 1978, whereby it was agreed that the Agreement for Backing and Accessories which was signed on June 29th, 1965 is a valid agreement and is recognized by the United Brotherhood of Carpenters and Joiners of America and the United Association.

Yours fraternally,

"R. Watson"

Robert Watson

International Representative

"John Carruthers"

John Carruthers

Executive Board Member

Ninth District

From there through 1986 the evidence is that that international agreement continued to be recog­nized, even after Mr. Carruthers went on to assume responsibilities for all of Canada and Ted Ryan assumed the former role of Mr. Carruthers with respect to Ontario. In 1980 Jackson-Lewis had assigned the installation of washroom accessories to its own carpenters, represented by Local 27, at its Markborough Place job, Phase I, but a switch to the Plumbers' was made, through the mechanical on site, once Mr. O'Ryan showed the international agreement to the Carpenters' busi­ness representative. In 1985 the international agreement again was applied at a St. Lawrence Cen­tre job, and at a job of Pigott itself at the Grace Hospital in Scarborough. In the latter case the entire washroom-accessories contract had been let to a specialty contractor, Islander Westland, and in the end an agreement was worked out whereby the complainant would supply men to install, and Islander Westland would apply the wages and conditions of the applicable collective agreement. It might be added that, while there are numerous examples to the contrary, Pigott on its own has performed this work through a mechanical contractor and the Plumbers' at jobs at the Toronto General Hospital, as well as at a couple of jobs outside the relevant Board area, in Hamil­ton. In 1986 Mr. Watson again had to intervene on a project (not of Pigott's), at Water Park Place on the Queen's Quay in Toronto, and Mr. Ryan's acceptance of the 1965 agreement on behalf of the Carpenters' was documented by Mr. Watson in internal (but unchallenged) correspondence as follows:

June 24, 1986

Mr. C. Thurrott, Bus. Rep.

Local Union 46, United Association

936 Warden Ave.

Scarborough, Ontario M1L 4C9

Re: Installation of Washroom Accessories

Water Park Place project

Queen's Quay - Toronto

Dear Sir & Brother:

This will confirm that at a meeting held on May 23rd, 1986 between International Representa­tive Ted Ryan of the Carpenters, and myself, with local Business Representatives in attendance, it was agreed the installation of the washroom accessories was the work of the United Associa­tion, in keeping with our Agreement of Record between the two International Unions dated June 29th, 1965.

Dave Smith, representative for P.C.L. Construction Limited, the General Contractor, was so advised and the work was turned over to the mechanical contractor on site, namely Brady & Seidner Mechanical.

Fraternally yours,

"R. J. Watson"

R. J. Watson,

International Representative, UA

5. That, however, appears to have marked the end of the "peace" on the issue. Mr. O'Ryan testified that he was aware of the washroom-accessories issue heating up politically within Local 27 itself, and in the 1988 round of ICI bargaining two material changes were effected to the Carpenters' provincial agreement. One was the addition to the list of work claimed as the Carpenters' jurisdiction in Schedule A to their agreement of:

"Installation of washroom accessories and toilet partitions

Secondly, the Building and Construction Trades' Department's "Plan for the Settlement of Juris­dictional Disputes" (which currently provides for initial referral to an Arbitrator) contains the fol­lowing directive to the Arbitrator in deciding a claim:

Sec. 8. In rendering his decision, the Arbitrator shall determine first whether a previous deci­sion or agreement of record between the parties to the dispute governs. If the Arbitrator finds that the dispute is not covered by an appropriate or applicable decision or agreement of record, he shall then consider whether there is an applicable agreement between the crafts governing the case. If no such agreement is in effect, the Arbitrator shall then consider the established trade practice and prevailing practice in the locality. Because efficiency, cost or continuity and good management are essential to the well-being of the industry, the Arbitrator shall not ignore the interests of the consumer or the past practices of the employer.

Article 19.02 of the '86-'88 Carpenters' collective agreement provided:

19.02 Work jurisdiction not described in Schedule "A" shall be settled by final determination by the Impartial Jurisdictional Disputes Board for settlement of jurisdictional disputes or its succes­sor. Requests for a decision shall be filed by either EBA or Ontario Provincial council hereinaf­ter referred to as the OPC.

Any assignments made before a final determination by the Impartial Jurisdictional Disputes Board in any local area may or may not, at the discretion of the employer, be changed, but in any event the original assignment shall not be the subject of any grievance claiming damages. However, subsequent assignments shall be made in accordance with the said final determination and such decision shall remain as the established local area work practice until changed by such tribunal.

Whether intentionally related to the present issue or not, this reference to the Impartial Jurisdic­tional Disputes Board (or the Plan in any form) is removed entirely from the 1988-90 collective agreement. The Plumbers' witnesses testified to a marked turnaround in not only the position of the Carpenters' international representatives over the washroom-accessories issue, and in particu­lar the effect of the 1965 agreement, but also of the general contractors. It has been noted as well by a number of witnesses familiar with the industry that it was becoming increasingly common to find the washroom accessories specified in the general's portion of the tender documents, rather than, as previously, in the Mechanical section. And in line with that it appears that more generals are, like Pigott in this case, doing the work themselves - which means with carpenters. The Plumb­ers' witnesses testified that they felt that what was occurring in the field was that Local 27 was now using the added Jurisdiction language in its collective agreement to threaten contractors with griev­ances, should the work in dispute not be assigned to them. It is the evidence of John Cartwright, the Carpenters' Business Manager, however, that the addition to Schedule "A" was meant only to clarify a jurisdiction the Carpenters felt they always have had under the agreement, and that there have been no threats whatever made by his Union to contractors with respect to the installation of washroom accessories. Mr. Cartwright added his speculation that it was in fact the economic cli­mate which was driving the generals in this direction, and there is certainly evidence before the Board which would tend to bear that out. Apart from the evidence given by Pigott itself, for exam­ple, Mr. McNeil testified about recent events at Markham Hospital, where Ellis Don, a general who had always subbed this work to mechanicals and the UA, decided for the first time to do the work with members employed by it from the Carpenters' Union. That was not, Mr. McNeil testi­fied, the only work-assignment change he felt the general was making to long-standing jurisdic­tional practices, and when he pointed this out the response he got from the general's job superin­tendent was that "the bottom line is [now] price".

6. The arguments in favour of the employer's assignment in this case are much the same by the respondent and two interveners. They rely in the first place on the fact that no collective bar­gaining relationship exists between Pigott and the complainant Plumbers' Union, whereas Pigott does have a collective bargaining relationship with the intervener Carpenters'. Secondly, they argue that area practice is at best mixed, and that in fact on the totality of jobs, including Pigott's, area practice overwhelmingly favours the Carpenters'. All that the complainant has to rely on, they submit, is its international agreement, which, they say, has never been accepted by Local 27, and is not a document that is binding on the employer. On economy and efficiency, Pigott refers the Board to a synopsis of a case emanating from the Construction Industry panel of the Nova Scotia Labour Relations Board, which it submits stands for the proposition that where work does not involve the "core skills" of a trade, employers ought to be free simply to carry out the work in the cheapest way they can. In that regard, Pigott submits, the 1965 agreement is wholly inconsistent with the direction the industry is moving in, and places a cost on the industry that the market can no longer tolerate.

7. The Board is not unmindful of the practical considerations which surround the position put forward by the employer in this matter. To put the matter in its simplest terms, "Do you really need a plumber to screw a towel dispenser on a wall?". There are, however, a number of other considerations, every bit as practical, to be taken into account as well. Every system for the settle­ment of jurisdictional disputes has as a primary goal the elimination of "wobbles" in the work­place, and the substitution in their stead of a rational and credible mechanism to decide the dis­putes. To make that process work effectively it is necessary for the parties themselves to have some idea what the "rules" are, and that of course is what the system that the Building Trades devel­oped, around their original and then amended Plans, was seeking to accomplish. And those Plans always recognized that, with the not-infrequent occurrence of a contractor being a party caught in the middle between two combating Unions, a "peace" that could be worked out between the two Unions themselves was a priority consideration. If some of such comprises were less than "per­fect", they at least provided stability, and all of the benefits for the industry, and for contractors who might otherwise "guess wrong", that that entails. Economy and efficiency are and always have been considerations for this Board which in particular situations may become dominant, but for this Board to signal a sudden shift to considerations of pure economy, and a wholesale scrapping of old established rules, does not appear to us to be in the interests of anyone (except perhaps those trade unions sitting at the lower end of the rate scale). Here, it should be noted, the contest is between skilled plumbers versus skilled carpenters, and there is no evidence that if Pigott did choose to hire plumbers directly, as it does with carpenters, the cost would be any different. Indeed, the evidence is to the contrary.

8. Local 27 recognizes the problem of jurisdictional disputes, but argues that what is needed is a "made-in-Ontario" solution. That is interesting, but of little assistance until such a mechanism is in place, and any efforts to develop a consensual process for this province have to this date proven fruitless. The Carpenters' real pitch on the point perhaps (as they rely on the "Green Book" for some things, reject it for others) is that for any "international" agreement to be valid, it must "accord with Ontario reality". If that is simply another way of saying that it must be an agreement that has been enforced and honoured in the local area, we agree. It is not, however, sufficient that a Local Union has never liked the agreement, and has sought to undermine it where they could. In Canadian International Comstock Co. Ltd., [1971] OLRB Rep. Aug. 477, the Board did make reference to a particular pipe-laying agreement between the General Presidents of the Labourers' and Pipefitters' Unions which the Board notes had from its inception been the subject of "disputes" over its interpretation and application. The mere existence of such "disputes" is not the ratio of the decision however, as the Board goes on to state more pointedly with respect to the geographic area in dispute:

14.... No useful purpose would be served by outlining the nature of the disputes over the Mem­orandum as no effort has been made by either trade to enforce it in Northwestern Ontario.... Accordingly, there are no agreements on file which assist the jurisdictional claim of either the Labourers or the Pipefitters.

(emphasis added)

9. While the Locals of an international trade union look to their constitution for work jurisdiction, and are by that same document made subordinate to "the International", it is true, as the Board observed in General Concrete Ltd., [1972] OLRB Rep. May 418, that the acts of two trade union internationals are not, strictly speaking, binding on an employer party. A better illus­tration of what this can mean is the Beer Precast Concrete case, [1970] OLRB Rep. Aug. 610, where the employers in the local area in question, because of its cost implications, simply refused to accept and apply the terms of the putative international agreement from the beginning, but rather continued with their practice as it had always been. The agreement was, therefore, out of line entirely with the actual practices that had been developed and maintained in the local area, and not found to be of particular assistance to the Board in the circumstances of that case. In a similar vein, see Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143. That, notwithstand­ing the assertions of Pigott and the Carpenters', is not the case here. While there does appear, as Mr. O'Ryan said, to have been a considerable degree of "live and let live" by the Plumbers', in not insisting on the strict application of the international agreement where, either because of the size or stage of the project it would be impractical to do so, where the Plumbers' did see an appropriate project for having the agreement applied, they did so - and did so successfully. We are satisfied on the evidence that the more uniform "change" in employer posture has come only in the period sur­rounding the instant project, and we do not find compelling in the circumstances the arguments for the Board to now give less weight to the 1965 agreement than the two internationals, as well as contractors in Board Area 8 on jobs where it was raised, consistently had done in the past. On the other hand, we would add that we do not find it appropriate in a case like this to give any weight whatever to a change in the practice of the architect or owner as to where they unilaterally choose to place the washroom accessories in their specifications, nor to enhancement in a "Work Jurisdic­tion" clause negotiated bilaterally under the collective agreement of one or the other of the trade-union parties to a section 93 dispute.

10. That leaves the Board having to consider whether the complainant is disentitled from seeking any relief from this Board by virtue of the fact that it does not have a collective-bargaining relationship with the employer Pigott. The first point to note about this argument by the respon­dent and interveners is that it has nothing whatever to do with the issue that arose before the Board in, for example, Simcoe Mechanical Contracting Limited, [1982] OLRB Rep. Sept. 1352. There the Plumbers' purported to bring a section 91 complaint (now 93) on a job on which the work was being done by certified plumbers. Local 46's problem was that the bargaining rights for those plumbers (employed by "Simcoe Mechanical") were held by C.L.A.C. - notwithstanding repeated unsuccessful attempts by the U.A. to wrest such bargaining rights in various parts of the province through the normal certification route. How Local 46 could have expected the Board to support such a purely representational claim in the guise of a "jurisdictional dispute" proceeding is difficult to imagine, and the Board in the end says just that. The other point to note about the col­lective-agreement argument of the respondent and interveners is that it is an argument arising not out of the fact that the complainant has not done its job of organizing, but rather purely out of the fact that Pigott for its own reasons has maintained a policy of not hiring any plumbers. To us it ignores the reality of how generals operate in construction to suggest that that alone should "change the rules" as to how work is traditionally to be apportioned between the trades in the industry - and indeed, as we have recounted, prior to the period of this dispute forward, it in mate­rial terms has not. All of this was usefully commented upon by the Board in the forerunner to the present case which involved the claim of both the IBEW and the UA on patient-modules, reported now as Pigott Construction Limited, [1990] OLRB Rep. Apr. 441 ("Pigott I"), commencing at paragraph 28:

11. 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.

12. 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.

13. 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.

14. 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 and 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

And for a direct example of the Board endorsing an assignment of work on the basis of other com­pelling indicia, notwithstanding that it was to the Union with which the contractor did not have a collective agreement, again see the Brunswick Drywall Limited case referred to earlier, [1982] OLRB Rep. Aug. 1143.

11. Notwithstanding the above insightful comments, the Board in "Pigott I" in the end declined to make the declaration for a combined crew sought by the complainants because one of them at least, the IBEW, had a clause in their collective agreement, which they made clear to the Board they would not waive, and which effectively prevented them from supplying electricians to any contractor "whose business is not recognized as electrical work". That meant that an award by the Board in favour of the complainants was an award requiring Pigott to subcontract. The Mechanical Contractors Association of Ontario, as it turns out, some years ago negotiated a simi­lar protection in Article 25 of its provincial agreement with the Plumbers'. However, it is clear from the evidence that the U.A. does have a policy of waiving that restriction, and that such waiver has in fact been expressly recognized in its collective agreement to a degree in 1982, and to a further extent more recently. It is clear, therefore, that Pigott has the choice, should an award go in favour of the complainant, of engaging plumbers to do this work either directly, or through a subcontractor as it has on occasion done in the past.

12. For all of the foregoing reasons, we are of the view and declare that the claim asserted here by the complainant, that the work of installing the washroom accessories at the instant hospi­tal in Toronto should have been assigned in accordance with the 1965 work-jurisdiction agreement between the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and the United Brotherhood of Carpenters and Joiners of America, is correct and ought to be upheld.

CONCURRING OPINION OF BOARD MEMBER JIM LEAR; June 25, 1992

1. In agreeing with all aspects of the decision, I do attach particular importance to the existing agreement between the Internationals of the Plumbers' and Carpenters' which relates spe­cifically to the accessories forming the subject of the dispute in this case.

2. Some similar agreements seem to be almost as old as time itself, and modern technolog­ical advances in construction methods and materials may have rendered them of doubtful applica­tion today. Not so this agreement. Though dating originally from 1939, it has been the subject of reinforcing supplements as recently as 1965 and 1978; the accessories in question, too, have remained essentially unchanged over the years. Moreover, area practice, and specifically in Board Area 8, shows an overwhelming and continuing support for this agreement on projects where it was sensibly applicable. This lasted until Carpenters' Local 27 began to "turn up the heat" in the later years of the 1980s in its bid to secure the work for their members, and culminated in Local 27's claim to this work in its 1988 collective agreement. Since then, the balance has tilted rather in favour of Carpenters' performing the work.

3. Regardless of anyone's opinion on who is better qualified to fix the accessories and on the economies to be achieved by doing the work with whatever trade, surely the crucial question is "what is the value of a valid and current agreement relating to the work in dispute?" In the inter­ests of both labour-relations harmony and obligations undertaken within the agreement, and cer­tainly where area practice has honoured the agreement until recent years, it must continue to be applied unless and until it is properly rescinded. The agreement is a product of serious negotiation, concession, and compromise, by each party to it; in signing, the parties are undertaking to abide by its conditions while it is extant; presumably by signing this agreement the Carpenters' gained some­thing, somewhere, in conceding the washroom accessories to the Plumbers'.

4. While Local 27 testified it did not believe in the agreement, it cheerfully admitted it had not bothered to make known its feelings to the Carpenters' International, but chose instead simply to ignore the existence of the agreement in recent years, though until then it had in fact allowed the agreement to be applied widely without argument.

5. It is not hard to imagine how the civil courts would rule on a similar type of agreement, freely made in a commercial context between two parties and breached without reason by one party without any re-negotiation, notification to, or discussion with, the other.

6. Agreements such as the one referred to are created in the hope of avoiding inter-union disputes, and are never lightly entered into. For these reasons, they must never be treated with dis­dain or with contempt. Procedures exist whereby a party unhappy with any part of an agreement may properly, and formally, register its unhappiness. Here, Carpenters' Local 27 elected not to fol­low these procedures but, instead, simply consigned this agreement to oblivion. It is to be hoped that, as in this case, the Board will always ascribe to agreements of this nature the premium value they deserve and will take serious objection to attempts to breach their conditions and obligations. While such a policy may result in short-term pain to someone caught in the middle of a dispute, in this case the contractor, Pigott, the long-term benefit to labour-relations stability industry-wide will be considerable and indisputable.

CONCURRING OPINION OF BOARD MEMBER HENRY KOBRYN; June 25, 1992

I believe all of the points that need to be made with respect to international agreements and the other aspects of the case before us here have been made by my two colleagues in their Opinions, and I fully concur with all of the comments made by both of them.