Sheet Metal Workers' International Association, Local 537 v. Kora Mechanical Inc., 1992 CanLII 6363

[1992] OLRB Rep. June 740

0657-91-JD; 0789-91-JD; 0875-91-JD; 1670-91-JD; 1687-91-JD Sheet Metal Work­ers' International Association, Local 537, Complainant v. Kora Mechanical Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 67, Respon­dents v. Ontario Sheet Metal and Air Handling Group, Intervener; Sayers & Associates Limited, Complainant v. Sheet Metal Workers' International Associa­tion, Local 30 and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Respondents v. Ontario Sheet Metal and Air Handling Group, Intervener; Harold R. Stark, Division of William Stark Group Inc., Complainant v. Sheet Metal Workers' International Association, Local 392 and United Association of Journey­men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463, Respondents v. Ontario Sheet Metal and Air Han­dling Group, Intervener; Sheet Metal Workers' International Association, Local 269, Complainant x'. E.S. Fox Limited and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463, Respondents v. Ontario Sheet Metal and Air Handling Group, Intervener; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Complainant v. Sheet Metal Workers' International Association, Local 30 and English & Mould Ltd., Respondents v. Ontario Sheet Metal and Air Handling Group, Intervener

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.

APPEARANCES: A.M. Minsky for Ontario Sheet Metal Workers' Conference and Sheet Metal Workers International Association Locals 30, 269, 392 and 537; Alex J. Ahee, Brian J. Scott, B. Christie, D. Clark, Jim Boyle and Fred Wilson for The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Unions 46, 67 and 463; Richard J. Charney and Henry Dinsdale for Sayers & Association Limited, Harold R. Stark, Division of William Stark Group Inc., and English & Mould; W. J. McNaughton and D. Carrier for E. S. Fox Limited; Keith Billings and Bert Gardner for Ontario Sheet Metal and Air Handling Group.

DECISION OF THE BOARD; June 10, 1992

1. These are five work assignment complaints made under section 93 [formerly section 91] of the Labour Relations Act. The common element of the complaints is that the work in dispute in each is closely similar and they all bring in to play the Interim National Agreement between the United Association of Journeymen and apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and the Sheet Metal Workers' International Association. The Interim National Agreement is dated August 31, 1956. On or about September 30, 1958 the parties issued three drawings for use in interpreting the Interim National Agreement.

2. At a pre-hearing conference with the panel, the parties came to an agreement about how to proceed with the complaints. Their agreement included the following elements:

(1) that this Board panel be seized with hearing each complaint on its merits.

(2) that the Board inquire into and determine the applicability and inter­pretation of the Interim National Agreement and the three associ­ated drawings relative to the work in dispute in each complaint; and, as a result of that inquiry and determination,

(3) that the Board determine what effect is to be accorded to the Interim National Agreement and the three drawings in the adjudication of each complaint.

3. The parties agreed also that, if the effect to be given to the Interim National Agreement and the three related drawings is not dispositive of the complaints, the parties will make further submissions on whether the complaints should proceed "en bloc" or individually.

4. The Board accepted the parties' agreement. It received their viva voce and documen­tary evidence during five days of hearings, following which the parties made written submissions respecting the conclusions which the Board should reach on the evidence.

5. The provisions of the Interim National Agreement relevant to the issues before the Board are:

August 31, 1956

INTERIM NATIONAL AGREEMENT

between the

UNITED ASSOCIATION OF JOURNEYMEN AND

APPRENTICES of the

PLUMBING AND PIPE FI'ITING

INDUSTRY

and the

SHEET METAL WORKERS'

INTERNATIONAL ASSOCIATION

It is the purpose of this interim agreement to improve relations between the two organizations, eliminate work stoppages, to settle jurisdictional disputes directly between the two organiza­tions, and mutually to assist each union to secure work coming within their recognized jurisdic­tion.

It is understood that this interim agreement shall not relate to or have any bearing on jurisdic­tional disputes that may occur between either of the parties to this agreement and any other international union or subordinate body thereof.

It is understood that any adjustment made under the terms of this interim agreement shall not prejudice the jurisdictional claims of either international union.

ARTICLE Il-Room Radiators and Enclosures for Heating Purposes Only

(1) The installation of all room radiators, convectors and fin-type radiators when enclosures are made to fit the radiator or convector and shipped to the job as a manufactured unit shall be han­dled, unloaded and installed in their entirety by members of the United Association. An excep­tion shall apply when an enclosure is made up and installed to cover space beyond the convector radiator, or used or installed beyond the cover of the manufactured convector unit to fill out a space between the end of the window bay and the radiator enclosure, in which case the han­dling, unloading and installation of such enclosure shall be the work of members of the Sheet Metal Workers. When an enclosure is specially fabricated and not shipped to the job as a manu­factured unit, the installation of such enclosure shall be installed by members of the Sheet Metal Workers.

The three drawings are not suitable for reproduction in this decision. They include cryptic notes indicating which trade was to install the parts in the drawing. The Board has taken into account the drawings and annotations in coming to our conclusions herein. Although, if the drawings have application to the work in dispute, we note that even the parties who contend that the Interim National Agreement is dispositive of the complaints did not plead the drawing bearing the page number 180.

6. The Board received viva voce and documentary evidence about the work out of which these complaints arose and which was being performed on the projects of the employers in each complaint. The documentary evidence included extracts from commercial contracts covering the work in question, supplier specifications and drawings associated with the commercial contracts and supplier specifications. Having regard to that evidence and the parties' submissions, the Board finds that the work in dispute is:

the handling and installation of enclosures, together with their essential accessories, for finned tube convectors. The enclosures extend from wall to wall and pilaster to pilaster.

This, of necessity, is a generic description of the work in dispute on five projects:

Kora Mechanical Inc., at the Halton Regional Centre, Oakville. (Board

Area #8)

Sayers and Associates Limited, at the 250 Yonge Street Project, Toronto.

(Board Area #8)

Harold R. Stark, Division of William Stark Group Inc., at the Environmen­tal Sciences Building, Trent University, Peterborough. (Board Area #11)

E.S. Fox Limited, at the Sears 2000 Warehouse Project, Belleville. (Board

Area #12)

English and Mould Ltd., at the Toronto Dominion Centre, Tower 5 Project,

Toronto. (Board Area #8)

In each complaint, the generic description of the work in dispute will be subject to the specifica­tions and drawings relating to the enclosures.

7. The remaining issues relate to the Interim National Agreement, or more particularly, section 1 of Article II. They are:

(1) does section 1 of Article II apply to the work in dispute and, if it does,

(2) what effect should it have in the adjudication of each complaint?

8. Having regard to the evidence of the work in dispute on the five projects there can be no doubt that it falls within the work described in section 1 of Article II of the Interim National Agreement and, therefore, that Agreement is applicable to the work in dispute in the five com­plaints.

9. Having further regard to the evidence of the work in dispute, the evidence of some wit­nesses as to how they were able or unable to relate the supplementary drawings to that work and to the submissions of the parties on the applicability and interpretation of the Interim National Agreement and those drawings, the Board has concluded that it should not determine the five complaints on the basis of the Agreement and the drawings, whether or not they give exclusive jurisdiction for the work in dispute to members of one of the trade union parties. This is because the evidence strongly suggests that, with respect to the five employers, the Sheet Metal Workers' International Association and its Locals 30, 269, 392 and 537 have only recently sought to rely on the Interim National Agreement in seeking to assert their claim to exclusive jurisdiction over the work in dispute. The witnesses who testified respecting the work in dispute, and who had the ulti­mate responsibility of deciding how to assign it, are all persons who have extensive experience with the installation of heating, ventilation and air conditioning systems, including other jobs involving the same kind of work as is in dispute here. Two of them first became aware of the Interim National Agreement in 1989 and three of them became aware of it in 1991. One of them, Kurt Sikora, the principal owner of Kora Mechanical Inc., began in the industry as an apprentice in 1958. He first became aware of the Agreement when the complaint was made relating to his firm's job.

10. In these circumstances and bearing in mind that jurisdictional arrangements between trade unions are only one of several criteria which the Board usually considers in deciding work assignment disputes, it would not be appropriate to make the assignment on the basis of the Interim National Agreement without consideration of other criteria. To put it another way, even were the Board to interpret the Agreement and the drawings as giving exclusive jurisdiction over the work in dispute to one of the unions, these are not circumstances in which the Board can say conclusively that that would be the proper assignment no matter what evidence might come for­ward respecting such criteria as area past practice, employer past practice, economy and efficiency and employer preference.

11. Having come to that conclusion, the Board will not interpret the Interim National Agreement and the three associated drawings as they relate to the work in dispute in each com­plaint. The Board recognizes why these issues were litigated the way they were and appreciates that the parties proceeded in this manner because of the prospect of avoiding more extensive litiga­tion. However, having determined for the reasons stated above that the Agreement and drawings would not be dispositive of the complaints, at this stage of the proceedings, it would not make good labour relations sense for the Board to interpret the Interim National Agreement and the drawings relative to the work in dispute. Were the Board to interpret those documents at this stage of the proceedings where, as yet, there is no need for it to do so, its interpretation might have fairly wide ramifications for others who are not represented in these proceedings.

12. This decision should not be read as this panel of the Board disagreeing with those deci­sions in which the Board has found jurisdiction arrangements between trade unions to be quite persuasive provided subsequent practice has been generally consistent with the arrangements. To the contrary, it makes good labour relations sense that trade unions which are bound to such arrangements and attempt to disregard them, should expect to have to demonstrate substantive grounds, such as a dominant area practice in their favour, in order to justify not complying with the arrangements. Even though employers are not parties to such arrangements, whether or not an arrangement may be dispositive of a dispute, where the trade unions have mutually relied on the arrangements to assert their respective claims over the covered work, it makes good labour rela­tions sense that employers who have collective bargaining relations with the union parties assign the covered work in accordance with the arrangement unless it can demonstrate by convincing evi­dence that there were substantial grounds for a different assignment.

13. In the result of the Board's conclusions herein, if the complaints are to be heard on their merits, it will be necessary for the Board to receive the submissions of the parties respecting whether the complaints should be heard and decided "en bloc" or individually. Therefore, the Registrar is directed to schedule a common hearing for these complaints before this panel of the Board for that purpose.