International Association of Bridge, Structural and Ornamental Iron Workers v. Electrical Power Systems Construction Association, 1992 CanLII 6371

[1992] OLRB Rep. August 915

1038-90-JD International Association of Bridge, Structural and Ornamental Iron Workers and International Association of Bridge, Structural and Ornamental Iron-Workers, Local 721, Complainants v. Electrical Power Systems Construction Association, Ontario Hydro, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Respondents

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Lear and J. Kurchak.

APPEARANCES: S. B. D. Wahl, J. Phair, S. Arsenault and W. Cox for the complainants; Alex Ahee, Neil Meikle and Mitch Griffiths for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46; Neal Sommer, Peter Watson and John Tomlinson for Ontario Hydro.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR, AND BOARD MEMBER J. LEAR; August 28, 1992

1. This is a jurisdictional dispute complaint filed pursuant to section 93 [formerly section 91] of the Labour Relations Act. In this complaint the complainant ("Ironworkers") asserts that the respondent employer ("Ontario Hydro") has assigned particular work to the respondent union ("United Association" or "U.A.") rather than to the Ironworkers.

2. The hearing into the merits of this dispute over the assignment of particular work lasted twenty-five days and was spread over a period of time from January 8th, 1991 to February 27, 1992. At the conclusion of the evidence the Board directed each party to file with the Board and provide to the other parties written submissions as to the determinations which the Board ought to make having regard to the evidence presented by the parties. Further written submissions in reply to those submissions were also filed by the parties. As a result of the parties' extensive, thorough and complete written submissions it was unnecessary for the Board to hear the viva voce arguments of the parties. Accordingly, and with the consent of the parties the hearing of June 4th, 1992 scheduled for that purpose was adjourned by the Board.

Preliminary Matters

Referral to the Plan

3. Before we turn to our determination with respect to the merits of this jurisdictional dispute we will deal briefly with a number of preliminary matters. At the commencement of these proceedings the Board in a unanimous oral ruling dismissed a motion brought by the United Association pursuant to section 93(14) [formerly section 91(14)]. The United Association had asserted that we ought not to hear this complaint as the matter had been referred by the Ironworkers to The Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ("The Plan").

4. The oral reasons provided to the parties on February 27, 1991 were as follows:

The Board's jurisprudence is clear. Where the collective agreements of the two disputing unions clearly and unequivocally provide that jurisdictional disputes are to be referred to mutually accepted tribunals such as The Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (The Plan") the Board will not inquire into a jurisdictional dispute complaint filed under section 91.

In our view the Ironworkers' collective agreement does not contain such clear and unequivocal language. Rather the Ironworkers' collective agreement with EPSCA provides an option to the Ironworkers. The union may elect to refer its jurisdictional dispute with another union either to the Ontario Labour Relations Board or to The Plan. The Ironworkers' collective agreement does not preclude the ironworkers from seeking an adjudication of a jurisdictional dispute from the Ontario Labour Relations Board.

In our view, however, notwithstanding the Ironworkers' right to elect to proceed before either The Plan or the Board, the provisions of the Ironworkers' collective agreement do not go so far as to permit the Ironworkers to refer a jurisdictional dispute to The Plan, then change its mind and refer the same jurisdictional dispute to the Board (either before, during or after final adjudication by The Plan). That would be blatant forum shopping which would not be beneficial to or further harmonious labour relations between contractors and trade unions. Nor would it further relationships amongst trade unions. Such forum shopping would also undermine the adjudicative functions of both the Board and The Plan.

The issue therefore is to determine whether the complainant has already referred the jurisdictional dispute which it filed with the Ontario Labour Relations Board on July 17th, 1990 to The Plan. The United Association says it has and points to the letter dated April 24th, 1990 from Jake West the General President of the Ironworkers to Ms. Loretta Powers the Acting Administrator of The Plan and subsequent correspondence to or from Ms. Powers together with the provisions of The Plan itself in support of this position.

The Ironworkers disagree. Counsel for the Ironworkers submits that the April 24th, 1990 correspondence from Jake West is no more than a request by the Ironworkers that Ms. Powers advise or remind Ontario Hydro of its obligations with respect to a "change in original assignment" under the Procedural Rules and Regulations of The Plan. Alternatively, counsel argues that at its highest the April 24th correspondence refers to the administrator a dispute relating to "a change in original assignment" and not the merits of a jurisdictional dispute between the two unions. Counsel asserts that there is a difference between the procedures for dealing with allegations of a change in original assignment under the Procedural Rules and Regulations of The plan, and the procedures for referring and adjudicating the merits of the jurisdictional dispute pursuant to The Plan.

We have determined that we need not decide which of the opposing views is correct. For purposes of this preliminary ruling we need not determine whether the April 24th correspondence (and the other correspondence marked as exhibits which relate to it) is a referral of the merits of the jurisdictional dispute for adjudication by The Plan or whether it is a referral of a "change of original assignment" dispute to The Plan, or whether it is simply a request that The Plan administrator remind Ontario Hydro of its obligations under The Plan.

What is clear from the evidence is that the April 24th correspondence and all the correspondence which surrounds it refers only to the unloading and fabrication of structural beams and plate.

That work is not included in the mark-up of Hydro dated March 5th, 1990, was not assigned to either union in Hydro's final assignment dated March 23, 1990, and is not included in the work in dispute placed before this Board in the jurisdictional dispute complaint filed July 17th, 1990.

Although the Ironworkers' original complaint makes reference to "fabrication", the parties subsequent agreement about the description of the work in dispute at the pre-hearing conference, and their further agreement before this panel about the elements of the work which remain in dispute indicate that the disputed work does not include the off-site fabrication of structural beams and plate or the unloading of that material. From the evidence before us we conclude that the "fabrication" referred to in the April 24th letter is the off-site fabrication of the structural beams and plate work used in the on-site fabrication and construction of the steel floor falsework deck and track runway. It is this latter fabrication and construction which is clearly in dispute before us. The off-site fabrication of the components used to construct the floor falsework and track runway does not form part of this complaint. This complaint is concerned with the on-site fabrication and construction of the steel floor falsework deck and track runway itself.

For all of these reasons we dismiss this preliminary motion. We find that we have jurisdiction to deal with this complaint and that such jurisdiction is not ousted by the provisions of section 91(14). In the circumstances of this case we decline to exercise our discretion under section 91(13) and will proceed to deal with the merits of this complaint.

The Cooper-Connolly Agreement

5. On March 12th, 1991 we rendered a unanimous "bottom line" oral ruling in which we dismissed a motion brought by the Ironworkers that we not entertain evidence with respect to a portion of the work in dispute as such work was covered by an existing trade agreement between the Ironworkers and the United Association. The Ironworkers submitted that the trade agreement was dispositive of at least a part of the work referred to in this complaint. It was asserted that by reason of the particular language of the collective agreements between EPSCA and the Ironworkers and EPSCA and the United Association the trade agreement was binding upon all the parties to this dispute and had the effect that work must be assigned in accordance only with that trade agreement.

6. The oral ruling made on March 12th, 1991 was as follows:

It has been submitted that we should determine, as a preliminary matter, whether or not the Cooper-Connolly agreement is an agreement between international unions claiming the work. The Cooper-Connolly agreement is a document signed in 1958 by certain representatives of each of the Ironworkers (Cliff Cooper) and the United Association (Joseph Connolly). It sets out an agreement reached by these representatives at that time with respect to the jurisdiction of each trade union over certain work. The parties are agreed that a portion of the work in dispute in these proceedings is work referred to in the Cooper-Connolly agreement.

The issue is important because Article 6.1 of each of the collective agreements which EPSCA has with the Ironworkers and the United Association states as follows:

The jurisdiction of the union shall be that jurisdiction established by agreements between international unions claiming the work or decisions of record recognized by the AFL-CIO for the various classifications and the character of work performed, having regard for the special requirements of thermal, nuclear or hydraulic generation and transmission and transformation construction.

(emphasis added)

The last portion of this article namely commencing with the words "having regard for the special requirements" is not found in the collective agreement between the U.A. and EPSCA.

Put simply, counsel for the Ironworkers asserts that the Cooper-Connolly agreement is an agreement between the two trade unions which covers at least a portion of the work. He submits that in view of the language of the collective agreements and the Board's decision in the Electrical Power Systems Construction Association, Board File 0521-89-JD, dated June 28th, 1990 unreported we should exercise our discretion and not entertain that portion of this jurisdictional dispute which refers to work covered by the Cooper-Connolly agreement because of the existence of this trade agreement. He argues that the agreement between the two international trade unions governs and is binding upon Hydro. Therefore work must be assigned in accordance with this existing trade agreement namely to the Ironworkers.

In our view the so-called Cooper-Connolly agreement was not a subsisting or existing "agreement between the international unions claiming the work" at the times relevant to the adjudication of this jurisdictional dispute - namely, either when the collective agreements between EPSCA and the Ironworkers and the U.A. were signed or when the disputed work was assigned or performed. We therefore dismiss this preliminary motion. We will continue to adjudicate upon the merits of this jurisdictional dispute in its entirety. We wish to emphasize that our ruling with respect to the Cooper-Connolly agreement will not impact upon the admissibility of the past practice evidence of the employer or the area practice evidence (once we've ruled upon the parameters of that evidence). That evidence will be admissible regardless of whether or not the work was performed in accordance with, pursuant to, or in contravention of the Cooper-Connolly agreement.

Our reasons will follow.

We now provide our reasons.

7. On or about December 10th of 1958 Mr. Joseph Connolly, at that time a general organizer for the United Association, and Mr. Cliff Cooper, a general organizer for the Ironworkers, signed an "Understanding" the preamble of which reads as follows:

The following understanding has been reached between international representatives and local representatives of the International Association of Bridge, Structural and Ornamental Ironworkers and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada based upon the interim agreement between the two international unions dated October 8th, 1953.

This understanding covers the work specified based upon area practice.

The Understanding goes on to specify four areas which the parties agree as being the work of either the Ironworkers or the U.A. The understanding was also signed by certain local representatives of the two unions. It is generally referred to as the "Cooper-Connolly Agreement".

8. The signatories to the Understanding are no longer alive. There is however some suggestion in the evidence that the Understanding was prompted by certain problems the two trade unions had encountered at the Hearn Generating Station of Ontario Hydro.

9. We heard much evidence as to the authority of the two general organizers to enter into this Understanding, the ratification or not of the Understanding by the general presidents of each of the two trade unions, and the various steps which the U.A. took from the time of the signing of the Understanding to November 1981 and thereafter to show that it did not recognize the Understanding and otherwise disavowed the agreement. The thrust of this evidence was to underscore the position of the parties that since its signing the Ironworkers have consistently looked upon the Cooper-Connolly agreement as a legally binding agreement to be applied by both trades and the employer community which employs the trades. For its part on the other hand the U.A. has always taken the position that the agreement was entered into without authority by Mr. Connolly, has never been approved or accepted by either the U.A. executive or its general membership and that generally the U.A. has consistently denied that the Cooper-Connolly agreement is a valid trade agreement.

10. In light of our ultimate determination with respect to this issue we need not detail that evidence or the submissions of the parties concerning that evidence. Whatever may have been the case in 1958 when the understanding was first signed, or in the intervening 23 years until November 1981 is in our view and in the circumstances of this case purely academic to the issue placed before us. Whether Messrs. Cooper and Connolly had authority to reach an agreement which would be binding upon their respective international unions, or whether that agreement had to be ratified and adopted by either the general presidents or the general memberships of either trade union is not relevant in the circumstances of this case.

11. In our view the provisions of the collective agreements between EPSCA and the U.A. and EPSCA and the Ironworkers (Article 6.1) set out in our oral ruling require employers such as Ontario Hydro to consider those agreements between the international unions claiming the work that are in existence at the time the work is assigned. To put the matter another way, an employer such as Ontario Hydro must consider current, subsisting agreements as to jurisdiction between the trades. It need not necessarily consider trade agreements which have expired or which have been revoked or trade agreements which for any number of other reasons are no longer valid or in effect at the time the work is assigned. We agree with the submissions of counsel for Ontario Hydro that to hold otherwise would preclude the advancement of relationships between the employers and the trade unions and the continuing relationship between the trade unions themselves.

12. The only issue which the parties put before us in the context of the preliminary motion brought by the Ironworkers was whether the Cooper-Connolly agreement was an "agreement between international unions claiming the work" within the meaning of Article 6.1 of the applicable collective agreements. In order to make that determination the relevant time is the time when the work was assigned. Accordingly, the only issue therefore was whether the Cooper-Connolly agreement was an agreement between the international unions at the time the work was assigned.

13. Before proceeding further we note parenthetically that when the status of the CooperConnolly agreement was raised as a preliminary matter the only issue raised revolved around its status as an "international" trade agreement. The parties did not then raise or address the status of the Cooper-Connolly agreement as a "local" agreement although the Ironworkers in their written submissions at the conclusion of the case did put forth that argument. (We will address that argument later in this section). The issues which the parties put before the Board in arguing the preliminary motion and the circumstances of this case do not require us to decide such issues as the applicability of "international" trade agreements which have not been enforced, applied or relied upon by "local" unions in any particular area, or the status of "international" trade agreements which are inconsistent with, or have been modified or varied by local area practice. Similarly, in the circumstances of this case there is no issue about the effect of an "international" trade agreement upon a local union which continues to apply, enforce or abide by such an agreement notwithstanding its abrogation or rejection by the parent international(s). The issue simply is the status of the Cooper-Connolly agreement as an "agreement between international unions claiming the work" at the time the work was assigned and for the purposes of interpreting the collective agreements applicable to the parties to this dispute.

14. On November 4th, 1981 Mr. Martin J. Ward who was then the General President of the United Association wrote to Mr. John Lyons the General President of the Ironworkers the following letter:

On December 10, 1958, General Organizers of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFLCIO, and the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, entered into a Memorandum of Understanding governing the unloading and handling of piping materials and equipment in Ontario, Canada, The Memorandum of Understanding has generally been referred to as the Cooper-Connolly Agreement.

This Cooper-Connolly Agreement has never been recognized as an official document by the United Association because it has never been acted upon or signed by the General President of the United Association which, under our rules, is required.

During our recent Convention a resolution was introduced calling for the abrogation of the so-called Cooper-Connolly Agreement. The delegates at the Convention, after a full discussion, have directed me, as General President, to notify you and your International Union that the Cooper-Connolly Agreement is null and void and in the future will not be recognized by the United Association or its Canadian affiliates. From this date forward, any future jurisdictional questions will be resolved without regard to the Cooper-Connolly Agreement. The procedures and guidelines which have always governed the settlement of these disputes between our International Unions in other parts of the United States and Canada will henceforth also control any questions concerning work jurisdiction which may arise in Canada.

In our view this letter is dispositive of the status of the Cooper-Connolly agreement at all times relevant to this complaint. As a result of the letter of November 4th, 1981 from Mr. Ward to Mr. Lyons the Cooper-Connolly agreement was not at the time the work was assigned an "agreement between the international unions claiming the work". Whatever its earlier status may have been, the November 4th, 1981, letter notified the Ironworkers, in writing, that the U.A. was repudiating the agreement.

15. In his submissions to the Board at the time we dealt with this as a preliminary matter, and again in his written submissions to the Board at the conclusion of the case counsel for the Ironworkers argued that one party to a trade agreement cannot unilaterally abrogate the agreement. As an agreement is based on mutual consideration, there must also be "mutuality of its rejection". He asserted that parties to a trade agreement must assume responsibility for the agreements made so that if problems arise under the agreement or because of the agreement both parties must agree that their original agreement with respect to work jurisdiction is no longer in effect. In the written submissions at the conclusion of the hearing in which a reconsideration of our oral ruling is urged the Ironworkers state:

Simply put, International Unions ought not to be able to unilaterally abrogate their commitments. (at page 39)

To allow unilateral abrogations simply encourages confusion and lack of stability with respect to trade jurisdiction in the construction industry. (at page 41)

16. It was submitted that if agreements could be unilaterally revoked by a party there would be no utility in reaching an agreement in the first place. Counsel for the Ironworkers argued that sound labour relations are fostered by enforcing agreements reached. They are not fostered if matters are in effect "left in the air" because a party can at any time decide that it no longer wants to live with the agreement it has made.

17. Counsel for Ontario Hydro submitted that the Board need not determine the status of the Cooper-Connolly agreement as the evidence before the Board established that Ontario Hydro has not consistently applied the agreement and has engaged in practices which are at variance with the Cooper-Connolly agreement. It was submitted that the evidence before the Board disclosed that none of the parties to this jurisdictional dispute complaint had "used" the Cooper-Connolly agreement in the past.

18. Both counsel for Ontario Hydro and the United Association submitted that the agreement was not binding because it had not been ratified by the general presidents of the two international unions. This is an argument which we need not address.

19. Finally, both counsel for the U.A. and Ontario Hydro asserted that an agreement between trades with respect to trade jurisdiction need not be an agreement in perpetuity. It does not bind forever and can be revoked. In this regard counsel for Hydro submitted that upon giving notice to the other party, a party to an agreement may resile from that agreement.

20. Counsel for the United Association adopted those submissions. He also noted that if this was not the case there would be no method by which a union such as the U.A. can undo results which, in this case, the U.A. asserts are the consequences of "conduct without authority". The U.A.'s primary position continued to be that Mr. Connolly did not have the authority to enter into the understanding and/or bind the international union. As noted we need not address this argument.

21. We reject those submissions of Ontario Hydro which suggest that an employer can refuse to recognize and to apply valid and subsisting agreements as to trade jurisdiction between the trades claiming the work. In our view such conduct by an employer does not further harmonious labour relations between it and the trade unions representing its employees. Moreover, for the Board to condone the conduct of employers who seek to ignore valid and existing agreements with respect to trade jurisdiction also would not promote stability within the construction industry as a whole. An employer who determines to ignore an existing trade agreement concerning work jurisdiction does so at its peril. In this regard we simply note our concurrence with the past jurisprudence of the Board which finds subsisting trade agreements or arrangements as to work jurisdiction between international trade unions to be quite persuasive in circumstances where the agreement or arrangement has been recognized by both the internationals and their locals and the area practice has been generally consistent with the agreement or arrangement (see, for example, and most recently the decision of the Board in Piggott Construction Ltd., [1992] OLRB Rep. June 748. We acknowledge that different considerations may apply where the international trade union parties to the trade agreement themselves have not sought to rely upon, apply or enforce their agreement or arrangements and/or the area practice of the local unions subsequent to the agreement has not been generally consistent with the trade agreement. That however is not the issue before us in this instance. The evidence does not support counsel for Hydro's assertion that none of the parties to this dispute had "used" the Cooper-Connolly agreement in the past either in assigning or claiming work.

22. In our view the matter does come down simply to the issue as to whether trade agreements are perpetual agreements or whether they can be revoked or repudiated by one party to the agreement.

23. We note at the outset that there is no reference to either a particular project or a period of time during which the Cooper-Connolly understanding was to operate. On its face the understanding or agreement is for an indefinite term. None of the parties referred the Board to any jurisprudence of either the Board or the Courts which considered the matter of the terminability of an indefinite term contract. We can only assume that this is because in the view of the parties an agreement or arrangement with respect to work jurisdiction as between trade unions cannot usefully be compared or contrasted to commercial contracts.

24. We agree that there are substantial and significant distinctions between commercial contracts and the type of agreements between trade unions such as the Cooper-Connolly agreement. Nonetheless, some analogies may perhaps be made.

25. At common law an indefinite term contract of employment may be terminated upon the giving of reasonable notice. The purpose of such notice is "... to give the employee or servant a fair chance to obtain a new position" (see Harris, David Wrongful Dismissal, Richard DeBoo publishers, 1990 edition at p. 1-2.) Conversely, an employee similarly provides notice of the termination of his or her employment contract to the employer to give the employer some time to find a new and suitable replacement. In both these instances the provision of reasonable notice puts the parties to the indefinite term contract in as close a position as possible to the circumstances as they existed before the agreement was entered into. What constitutes reasonable notice is dependent on the facts and circumstances of the case and includes a myriad of factors. (See, for example, Bardal v. The Globe & Mail, 1960 CanLII 294 (ON HCJ), [1960] O.W.N. 253 (CJHC).

26. Similarly, in a number of commercial contract cases where the contract did not contain a provision for the termination of the contract the courts have held the contract to be terminable on reasonable notice. Inevitably these cases involved an agreement to supply goods or services over an unlimited period of time for a fixed, agreed upon payment. In due course the passage of years and inflation made the bargain grossly unequal as the cost of the goods or services escalated while at the same time the fixed payment became less in "real value" terms. The courts have permitted termination upon reasonable notice of such contracts by referring to the intent of the contracting parties and the notion that the circumstances which have developed were never within the intention of the parties so that the contract entered into cannot apply to the circumstances that have developed. By examining the terms of the contract and the circumstances the Courts may infer an intent by the parties to terminate the contract on reasonable notice.

27. In British Movietonews Ltd. v. London & District Cinemas Ltd. [1951] 2 E.R. 617 at

625, [1952] A.C. 166 at 186 Viscount Simon stated:

. ….If, on the other hand a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged the contract ceases to bind at that point - not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation.

28. This concept has been accepted and endorsed in Canada. Thus, for example in Boise Cascade Canada Limited v. the Queen in Right of Ontario et al (1981) 1981 CanLII 79 (ON CA), 34 O.R. (2nd) 18 the Ontario Court of Appeal at pp. 24-25 agreed with the concept. Although an appeal of this decision was upheld by the Supreme Court of Canada on other grounds, this aspect of the decision was not impugned by the Supreme Court (see Town of Fort Frances v. Boise Cascade Limited et al (1983) 1983 CanLII 47 (SCC), 143 D.L.R. (3rd) 193 at p. 208).

29. Conversely, the courts of Canada have not gone so far as to conclude that an agreement is terminable on some sort of reasonable notice merely because circumstances have changed since the contract was made. This concept was first advocated in the decision of Lord Denning in Staffordshire Area Health Authority v. South Staffordshire Water Works Company [1978] 3 E.R. 769 but was not supported by the majority of the English Court of Appeal in that case. The concept has been specifically rejected by the Canadian courts. Thus in the decision of the trial court in Boise Cascade Canada Limited v. The Queen, supra reported at 1979 CanLII 2086 (ON HCJ), 27 O.R. (2d) 216, at pp. 229-31 the trial judge held:

The court has no power to absolve a party from his contractual obligations simply because he finds them burdensome due to unforeseen circumstances nor can the court re-write the terms of a contract because it considers them no longer reasonable or because no reasonable person would now agree to them.

After quoting from the decision in British Movietonews Ltd. v. London & District Cinemas Limited, supra, the trial judge went on to state:

Part of the foregoing extract was quoted by Lord Denning, M.R., in his judgement in the Staffordshire case referred to by him as the forerunner of the modern rule of construction. It does not seem to me that the law has developed in Ontario to the point that parties to a contract can be relieved of an obligation or deprived of a benefit they could not have reasonably contemplated unless the contract can be construed to provide for such a result.

Upon appeal, the Court of Appeal concurred with these views of the trial judge. Similarly, the Supreme Court of Canada which heard an appeal of the decision of the Court of Appeal held:

The one issue which now appears to be accepted as settled by the parties to this appeal concerns the right of either party to the agreement of 1905 to terminate it unilaterally by notice. Both courts below found no such right existed in law, and that issue was not argued at any length in this court, both parties conceding that it is difficult to contemplate the termination of an agreement where the terminating party cannot restore the other party to the position enjoyed prior to the execution of the agreement.

Town of Fort Frances v. Boise Cascade Canada Limited, supra, at p.208.

30. We have reviewed these various legal principles only briefly in an attempt to glean some assistance from them in resolving this issue. If contract principles tell us to look to the intention of the parties was the intent of the contracting parties to the Cooper-Connolly agreement to make a perpetual, inviolate agreement? Are there grounds for inferring a power of termination in the Cooper-Connolly agreement or an intent by the parties that termination of the agreement was possible? Alternatively, should one trade union party to such a trade agreement or arrangement be permitted to unilaterally repudiate or terminate the agreement merely because, in its view, circumstances have changed? Did either party intend to enter into an agreement which could so easily be discarded? Unlike the cases of employment or commercial contracts, when dealing with an agreement, arrangement or understanding between trade unions with respect to their work jurisdiction these various questions are not separate, distinct or mutually exclusive. Rather they are tied together.

31. Assuming the trade agreement to be "valid", that is to say entered into by persons authorized to do so, we do not think that a trade agreement or understanding about work jurisdiction can be terminated by either party immediately after it is made merely because a trade union party has changed its mind or suddenly views the circumstances differently. In the case of the Cooper-Connolly agreement that cannot have been intended by the parties at the time. Certainly immediate repudiation of that nature would not further stable and harmonious relationships within the construction industry. Formal, written trade agreements or arrangements may take months if not years of intensive negotiations between the trade unions as concessions are made~ compromises are reached and the ultimate agreement is finalized, accepted and endorsed. As a result these written agreements must not be lightly set aside. Not only should the parties to the agreement be prohibited from lightly setting aside such an agreement, this Board similarly must be cautious in setting aside such trade agreements when asked to do so (see Piggott Construction Ltd., supra.)

32. On the other hand, and again having some regard to the intention of contracting parties to a trade agreement there is the inherent improbability of any trade union entering into a trade agreement about work jurisdiction which operates to bind that union and its members in perpetuity. This is particularly so if such an agreement does not (as the Cooper-Connolly does not) contain a provision of any sort to deal with for example changed circumstances or new technology, or if the agreement does not contain procedures for re-negotiation or amendment should such factors require it.

33. The absence of any such provisions and the absence of any mechanisms for the resolution of matters not directly provided for in the understanding or agreement are factors to consider both in dealing with whether the agreement or understanding can be terminated, and if so in resolving upon what terms such termination should occur.

34. Undoubtedly it would be preferable if trade union parties resolved "in-house" any problems or disputes arising out of the interpretation or application of the trade agreement which they have negotiated. That was not done by Messrs. Cooper and Connolly. Similarly there is no evidence to suggest that in the intervening years between the signing of the Cooper-Connolly agreement and the sending of General President Ward's 1981 letter the two trade unions sought to resolve the issue or dispute concerning the status or application of the Cooper-Connolly agreement. It may be that the absence of any such discussion was one of causes or motivating factors leading to the U.A.'s repudiation of the agreement.

35. On balance, although we concur with the submissions of counsel for the Ironworkers that an agreement or understanding concerning work jurisdiction should not be repudiated or abrogated lightly or "at a whim" (for to do so would cause instability and friction within the construction industry), we are of the view that at a minimum agreements which do not have a specific term of operation and which do not contain provisions or mechanisms for variation, negotiation etc. may be unilaterally terminated or repudiated upon the giving of reasonable notice. As with employment or commercial contracts, giving notice will enable the trade union parties (and others who may be affected by the repudiation of the trade agreement) sufficient time to arrange their affairs and otherwise get ready for the time when the trade agreement is no longer to be applied and honoured. More importantly the giving of notice will provide an opportunity for discussion.

36. In our view a significant difference between a commercial contract and an agreement about work jurisdiction lies in the observation of the Supreme Court that the party seeking to repudiate the agreement in the Boise Cascade case could not restore the other party to the position enjoyed prior to the execution of the agreement. That is not so for parties to a trade agreement.

37. Agreements or arrangements between trades are often based upon existing area practice. That is the case with the Cooper-Connolly agreement where the parties in the preamble specifically state that "this understanding covers the work specified based upon the area practice.". Unilateral repudiation of agreements or understandings with respect to work jurisdiction merely restores the parties to the position each enjoyed before execution of the agreement or arrangement. What has the non-repudiating party, in this case the Ironworkers lost as a result of the U.A.'s repudiation? In practical terms very little, if anything at all. At most, while the agreement was in effect the Ironworkers lost the opportunity to claim work which arguably it could have or would have claimed had the agreement not been entered into. In exchange however the U.A. for its part has presumably also lost an opportunity to claim work which arguably it could have or would have claimed had the agreement not been in effect.

38. Abrogation of the agreement or understanding may therefore have minimal practical effect. Abrogation of the agreement and restoration of the status quo as at the time the agreement was executed merely provides the parties with the opportunity to rely upon the past area practice as it existed at the time the agreement was executed together with the experience and/or area practice each has been able to develop while the trade agreement or understanding was in operation. Balanced against this minimal practical effect is the real likelihood that no trade union will enter into any agreement or arrangement concerning work jurisdiction if the effect of so doing is to bind that union and its members to the agreement forever. The necessary give and take to reach consensus is unlikely to occur if the giving and taking is to be carved in stone from that point forward.

39. For these reasons we are of the view that the interests of all the parties can be met by acknowledging that it is possible to unilaterally terminate indefinite term trade agreements or arrangements with respect to work jurisdiction upon the giving of reasonable notice. Once again however we wish to emphasize that discussion between the trades is to be preferred.

40. What constitutes reasonable notice must invariably be determined having regard to the particular facts of the case. These would undoubtedly include but are by no means limited to the subject matter of the agreement, the circumstances under which the agreement was made or sought to be terminated, the length of time during which the agreement has been operative etc.

We need not in this instance determine with any precision the length of reasonable notice. Indeed, we need not even determine whether that period of reasonable notice is to be measured in terms of months or years. Whatever period is "reasonable", we find that by March 1990 when the work was assigned and nearly eight and a half years after the written notice was delivered that period of reasonable notice had expired.

41. Although we need not determine the length of notice, we do wish to note that for purposes of certainty and to avoid confusion or misunderstanding notice should be given in writing. Further, notice of termination must be given by duly authorized representatives of the signatories to the agreement. That was the case in this instance where the international president of the U.A. gave written notice to the international president of the Ironworkers. In this regard the facts and circumstances of this case can be contrasted with those found in Pigott Construction Ltd., supra, where a local union at various times sought simply to ignore an agreement entered into by its parent international and took no steps to bring its concerns to the attention of the international.

42. It was for these reasons that we found that at all times relevant to this jurisdictional dispute complaint the Cooper-Connolly agreement was not a trade "agreement between [the] international unions claiming the work" as referred to in the applicable collective agreements between EPSCA and the Ironworkers and the U.A.

43. In the final submissions to the Board the Ironworkers asserted that if the CooperConnolly agreement did not enjoy the status of an international trade agreement, it ought nevertheless to be given status as a "local agreement". Counsel referred to Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775 at 786 paragraphs 26 and 27 where the Board commented upon the various types of agreements or understandings between unions and the degree of formality of such agreements. It was argued that the Cooper-Connolly agreement was also signed by the local business agent of Ironworkers Local 721 and the business manager of U.A. Local 46. It was asserted that:

There is absolutely no evidence that either Ironworkers, Local 721 or U.A. Local 46 has ever taken any action to abrogate "their" Cooper-Connolly agreement. At minimum then, within the ambit of the Shaefer-Townsend Mechanical-Electrical Limited case, the Cooper-Connolly agreement continues to bind Ironworkers, Local 721 and U.A. Local 46 as a local agreement or arrangement as to jurisdiction.

The reference to the decision of the Board in Shaefer-Townsend is a reference to the decision of the Board in Board File No. 2436-90-JD released February 4, 1992.

44. Counsel's characterization that there "is absolutely no evidence that ... U.A. Local 46 has ever taken any action to abrogate" the Cooper-Connolly agreement is inaccurate. The evidence clearly discloses that one of the moving forces, if not the prime initiator behind the abrogation of the Cooper-Connolly agreement was the membership and executive of Local 46. It was in large part the concerns of U.A. Local 46 which generated the resolution before the December 1981 U.A. Convention at which the abrogation of the Cooper-Connolly agreement was endorsed. At that Convention the U.A. Local 46 delegate urged acceptance of the resolution put forth by the Ontario Pipe Trades Council. There is no suggestion in any of the evidence before us that the U.A. Local 46 thereafter continued to apply and rely upon the trade agreement which was abrogated or repudiated by their international union. Indeed, the evidence is to the contrary. Since the letter of November 4, 1981, U.A. Local 46 has conducted itself as if the Cooper-Connolly agreement was not binding upon them. Although the situation may be different where a local continues to apply in its area a trade agreement repudiated by its parent international, on the evidence before us and also having regard to the broad but explicit language found in the November 4th, 1981 letter sent by General President Ward "... to notify you and your international union that the CooperConnolly agreement is null and void and in the future will not be recognized by the United Association or its Canadian affiliates" (emphasis added) we find that even if the Cooper-Connolly agreement is construed to be a "local agreement" such local agreement has not survived and was not binding upon the two locals to this dispute at times relevant to this jurisdictional dispute complaint.

Parameters of Practice Evidence

45. Finally, we note that after hearing the representations of the parties and as a preliminary matter we orally ruled that evidence of employer past practice and area practice would be limited to projects within the electrical power systems sector of the construction industry as this was the sector in which the work in dispute had been performed. It is also the only sector in which the employer which assigned the work operates. We determined that work in other sectors was therefore not relevant to the adjudication of this complaint. We further determined that the only area practice evidence relevant to this complaint was the past practice evidence in Board area 8, the geographic area in which this dispute arose. Evidence of employer past practice province-wide was admitted. See Commonwealth Construction Company, [1991] OLRB Rep. June 742.

The Merits

46. As indicated the Board directed each party to file with the Board certain written submissions. It is useful to set out our oral direction to the parties at the conclusion of the evidence to outline the breadth of the submissions made:

In view of the number of witnesses and days of hearing in this matter the Board hereby directs each party to file with the Board and copy to the other parties on or before April 6th, 1992 a written account of the facts each party asserts the Board should find on the evidence. Such written account of the facts should include any assertions of the parties regarding the credibility of -the witnesses. The written account must further include an identification by each of the parties of the issues each views as in dispute, the submissions of the parties with respect to the applicable jurisprudence and their submissions as to the relationship between the facts as asserted by the parties and those issues and the jurisprudence.

The Board further directs that each party file with the Board and copy to the other parties a written reply to the facts and submissions of the other parties on or before May 4th, 1992. Such reply does not necessarily have to include the recitation of any factual assertions made by the other parties which the replying party disputes. In its reply however the replying party should include the factual assertions the replying party views necessary in order to properly reply to the issues raised by the other parties, the applicable jurisprudence referred to by the other parties and the submissions of the other parties regarding the relationship between their asserted facts, the issues and the jurisprudence.

Thereafter the Board will convene a hearing to hear such oral representations as are necessary relating to the written submissions and replies that have been filed. The hearing is also to provide an opportunity to the parties to make submissions on matters or issues which may be raised by the Board.

47. By agreement, the parties extended the time limits for the written submissions. The Board did not object to that agreed upon extension. As stated the hearing scheduled for oral submissions was found to be superfluous given the parties extensive written submissions and was therefore adjourned with the consent of the parties.

48. We note that the Board is in a position to render this decision in a somewhat summary form but in a relatively expeditious manner (having regard to the length of the hearing and the complexity of some of the evidence tendered) in large part because of the extensive written submissions of counsel.

49. As a result of the submissions filed, the Board does not find it necessary to detail in this decision either the evidence or the able and thorough submissions of counsel. We propose merely to make some general observations about the evidence and the credibility of the witnesses. In dealing with our decision and reasons for the decision in such a brief and condensed manner we do not mean to suggest that the Board did not consider all of the evidence tendered or all of the submissions made. Indeed, the Board reviewed all of the evidence in light of the factual assertions and submissions which the parties filed.

50. The submissions of the parties outlined and summarized all of the evidence of the witnesses. Our review of the evidence disclosed that generally these outlines and summaries, although not inaccurate, understandably tended to summarize, outline and highlight only those portions of the evidence which supported a particular position of the parties while ignoring or trivializing other parts of the evidence which did not support such a position. As a result the summaries are not always complete and therefore the conclusions which the parties asserted should be drawn are not necessarily correct.

51. With respect to the evidence we make the following general observations.

52. We found the evidence of Messrs. T. Williams and J. Sweeney to be particularly helpful and useful in determining the employer's past practice. Both of these witnesses have a lengthy and varied employment history with Ontario Hydro. Both provided their evidence in a clear, honest and forthright manner. Each had a good recollection of past events and circumstances. Generally therefore where their evidence conflicted with those of other witnesses the evidence of these two witnesses was preferred.

53. The evidence of the various other witnesses with respect to the past practice at Ontario Hydro has also been considered. Although the remainder of the witnesses were for the most part sincerely trying to give evidence about events that occurred some years ago, we found that these witnesses generally either had less ability to clearly recollect such events or were alternatively unable to succinctly and accurately describe the work which they did recollect performing. Some were unable to resist the influence of self-interest to tailor their evidence and thereby support "their" union's position.

54. With respect to the work in dispute and its actual performance we accept the evidence of Mr. A. Birney. We found Mr. Birney to be a reliable and honest witness. For example, Mr. Birney readily admitted in a forthright manner the discrepancies between what Ontario Hydro intended to assign to the respective trades as a result of the mark-up process, and the actual language used to describe that intention in the mark-up document. Thus, Mr. Birney acknowledged that he intended for the Ironworkers to perform the necessary "tailing" of the feedwater heaters at the timberline hoistway. The mark-up however assigns "rig material and equipment" to the U.A. This description can include, and for at least a part of the work was thought to include by the U.A. all of the "tailing" operations.

55. Our acceptance of Mr. Birney's evidence does not go so far as to include an acceptance that the mark-up process used by Ontario Hydro was proper or correct. Although we reject the submissions of counsel for the Ironworkers that "the entire mark-up process was a sham" (page 8) we are of the view that there were significant flaws in the mark-up process. Such flaws ultimately contributed to the dispute between the trades about the assignment of the work.

Description of the Work in Dispute

56. The description of the work in dispute as agreed upon by the parties and as described in the pre-hearing conference memo consisted of the following:

all work in connection with:

(a) the fabrication and installation of structural steel floor falsework deck and track runway consisting of structural steel beams, channel iron, hollow structural steel shapes and plate; and

(b) all rigging and signalling for power assisted hoisting by Operating Engineers;

in connection with the removal, rigging, transport and replacement of feed-water heaters at the Lakeview Thermal Generating Station of Ontario Hydro.

More particularly, and with reference to the description of the work in dispute as set out immediately above, the parties were agreed that the work can be described as follows:

(a) with respect to removal:

(i) fabricate and install steel floor falsework, deck and track runway

(ii) rigging for all power assisted movement of feedwater heaters

(iii) operate hydraulic jacks.

(b) with respect to reinstallation:

(i) signal and rig feedwater heaters for power assisted movement from timberline hoist to point of installation

(ii) operate hydraulic jacks

(iii) remove structural steel falsework, deck and track runway.

During the course of the hearing the parties agreed that certain aspects of the work included in the general description of "all rigging and signalling for power assisted hoisting" were no longer in dispute.

57. We find it useful to provide some further detail about the work in dispute.

58. The work in dispute was performed by Ontario Hydro's own forces as part of its construction project called the Lakeview T.G.S. Rehabilitation Project. Part of the rehabilitation project required the removal and reinstallation of eight feedwater heaters. The location of the eight feedwater heaters at the site is as follows. There are four (4) feedwater heaters in each of unit 5 and unit 6 at Lakeview T.G.S. In each of the units there are two feedwater heaters at elevation 304 and two feedwater heaters at elevation 329. Both these elevations are above ground level. At Lakeview T.G.S. ground level is described as elevation 254.

59. The feedwater heaters are cylindrical vessels approximately 25 feet high and 5 feet in diameter. Each is supported by two sets of legs. The "new" feedwater heaters were somewhat larger and heavier than the "old" feedwater heaters which were to be removed and replaced. Both the new and old feedwater heaters each weighed in excess of 20 ton.

60. The work associated with the removal of the "old" feedwater heaters and the reinstallation of the "new" feedwater heaters was generally performed in the same manner. The new feedwater heaters were installed in reverse order to the manner in which the old feedwater heaters were taken out. We will therefore generally detail only the work associated with the removal of the old feedwater heaters with references where appropriate to the differences between the removal of the old and the reinstallation of the new feedwater heaters.

61. As the new feedwater heaters were heavier, there was some structural reinforcement of the floors beneath the point of installation for the feedwater heaters. All of the structural reinforcement work was performed by the Ironworkers and is not in dispute.

62. Before proceeding further with the description of the work we note that we do not accept the assertions of the Ironworkers that "there is no evidence of a cogent distinction for the assignment of the installation of load-bearing structural steel floor falsework to members of the U.A. while acknowledging that load-bearing structural steel reinforcement of the floor at the point of installation was correctly assigned to Ironworkers". In our view to draw an analogy between this reinforcement work and the construction of the floor falsework and track runway which is in dispute is incorrect.

63. We note that although eight feedwater heaters were removed and reinstalled, two different methods of completing this work were used. The four feedwater heaters in unit 5 and the two feedwater heaters at elevation 339 in unit 6 were removed and reinstalled using one method. This method involved the use of a track runway system and the hoisting of the feedwater heaters through the hoistway using a timberline hoist. The two feedwater heaters at the lower elevation (304) in unit 6 were removed and reinstalled in a different manner using a track runway system and a temporary platform placed on the turbine hall floor. These two feedwater heaters were landed on the platform and subsequently transported through the use of the turbine hall crane. We will deal with the six feedwater heaters which used the track runway system and hoistway first.

64. In order to remove the old feedwater heaters the feedwater heaters had to be precision cut and separated from the various piping systems to which they were connected. In addition the mechanical instrumentation was removed. Attachments were welded to the shell of the old feedwater heaters to facilitate their subsequent rigging and hoisting. As the new feedwater heaters came with trunnion pins attached, the welding of such attachments was unnecessary when the new feedwater heaters were installed. All work associated with the disconnection of the feedwater heaters was performed by the U.A. and is not in dispute. Similarly, reconnecting the various piping systems to the newly installed feedwater heaters was done by the U.A. and is not in dispute.

65. In order to move the feedwater heaters the distance between their point of installation and the hoistway through which they were lifted, a temporary tracking system was constructed. In addition, at least one turning platform was constructed at the top elevation in unit 6 where the feedwater heaters were required to be rotated 180 degrees. The construction of this tracking system or track runway and platform was assigned to the U.A. This work remains in dispute between the parties.

66. We accept as accurate the following description of the track runway system both as it was originally planned and as it was subsequently installed. This description is taken from the submissions filed with the Ironworkers:

As planned, the structural steel floor falsework track runway was to be constructed of 3/4 inch plate laid over the pattern of building structural steel. Structural steel I-Beams were to be placed with either end on the 3/4 inch plate laid on the concrete floor. Each I-Beam would therefore be 3/4 inch above the concrete floor. The I-Beams were to be welded end to end in two parallel lines with bolted cross-ties of hollow structural shapes steel to provide lateral stability. Channel iron was to be stitch welded to the top flange of the I-Beam as a guide for the multi-rollers. The turning platforms were to be constructed of 3/4 inch plate laid on the concrete floor over the building structural steel. Structural steel I-Beams were to be placed flange to flange with either end on the 3/4 inch plate. These I-Beams would therefore be 3/4 inch above the concrete floor and were welded flange to flange. Above the top flange of the I-Beams was welded 1/2 inch plate.

As installed, the structural steel falsework track was re-routed. However, its general structure remained the same, cross-ties, giving lateral stability, were not bolted and were not made of hollow structural shaped steel but were made of ten inch I-Beams tack welded to the main ten inch I-Beams rails.

67. In respect of this description we note only that the welding referred to in this description was generally tack welding for alignment purposes only. It was not continuous welding for structural purposes. We note also that the track as re-routed did not follow the pattern of the building steel.

68. Mr. Birney testified that the track runway was "over engineered". As such there is some difference between the work in dispute as planned and as marked up by Ontario Hydro, and its actual performance on the site. The differences between the "as planned" and "as constructed" track runway system do not affect our ultimate determination with respect to the proper assignment of this work.

69. The track runway system was constructed before the feedwater heaters were moved. The track runway was temporary in nature being used only for the removal and reinstallation of the feedwater heaters. It was eventually removed by the U.A. The removal of the track runway remains in dispute.

70. The feedwater heaters were removed sequentially with those closest to the hoistway being removed first. Conversely, the new feedwater heaters were reinstalled in the reverse order to that in which they were taken out. Thus, those furthest from the hoistway were re-installed first. In this way the congestion and consequent problems of moving feedwater heaters around existing ones was avoided.

71. After the old feedwater heaters had been disconnected at their point of installation they were raised up by means of hydraulic jacks. Each feedwater heater was jacked up higher than the track runway installed immediately below it. After being raised the feedwater heaters were blocked up with wood. Multi-ton rollers were placed underneath the feedwater heaters. The feedwater heaters were rigged and placed on the multi-ton rollers on the track runway. This work was assigned to the U.A. and remains in dispute between the parties. Similarly, the jacking down of the new feedwater heaters onto the anchor bolts before their reconnection by the U.A. is also in dispute.

72. The feedwater heaters were moved horizontally along the track runway the distance between their point of installation and the hoistway. In order to move the feedwater heaters tuggers, come-alongs, chain falls etc. were used. Which of the various methods was used (either alone or in some combination with the others) was dependent upon which method would be most effective and efficient. Thus for example tuggers were used for the long continuous "pulls" of the feedwater heaters at the upper elevation of unit 6. The lateral movement of these feedwater heaters was across the length of unit 5 and into unit 6.

73. As the distances for the lateral movement of the feedwater heaters varied there were no specific requirements in the plans as to when, where or under which circumstances tuggers were to be used. The use of tuggers as opposed to for example chain falls or come-alongs was left to be determined by the trade responsible for the lateral movement of the feedwater heaters which in this case was the U.A.

74. In our view the parties in their evidence and their submissions focused excessively on the use of tuggers and placed an inordinate amount of emphasis on this fact. The evidence disclosed that with the exception of the feedwater heaters at the upper elevation in unit 6 (where use of the tuggers accounted for approximately seventy to eighty per cent of the lateral movement) during the performance of the work in dispute there was minimal use of tuggers for the lateral movement of the feedwater heaters between their point of installation and the hoistway.

75. The lateral movement of the feedwater heaters on the multi-ton rollers travelling along the track runway and all signalling and rigging for that lateral movement was assigned to the U.A. This portion of the work remains in dispute between the parties.

76. None of the parties however dispute the assignment of the operation of the tuggers to the Operating Engineers. None of the parties claim the operation of the tuggers. Similarly there is no dispute that the tuggers were "set" (i.e. fixed to miscellaneous steel embedments in the concrete floor or affixed to building structural steel) by the Ironworkers. The installation of the tuggers by the Ironworkers is not in dispute.

77. The signalling and rigging for the operation of the tugger is an area of dispute between the two trades. In this regard we note that the evidence is far from clear with respect to the type of signalling used for the tugger operation. Mr. Birney's evidence suggests that in fact all signalling for the use of the tuggers during the lateral movement of the feedwater heaters was done by hand by the U.A. as the trade using the tuggers. He acknowledged however, and there does not appear to be any dispute between the parties that if radio signalling was required (i.e. because the operator's view was obstructed) that radio signalling was done by, and would be properly assigned to, the Ironworkers in accordance with Ontario Hydro's past practice. There is no dispute between the parties to this complaint that any radio signalling performed in connection with the performance of any of the work in dispute is properly the work of the Ironworkers.

78. Once the feedwater heaters were at the top of the hoistway they were "tailed". It was therefore necessary to lift the old feedwater heaters from their horizontal position to a vertical position. This was accomplished through the use of tuggers and/or chain falls used in conjunction with the timberline hoist by lifting the vessel at one end and restraining it at the other. In this way the load of the feedwater heaters was translated from the horizontal position on the multi-rollers at the hoistway to a vertical position hanging from the rigging beam in the hoistway.

79. Conversely, the new feedwater heaters arriving at the top of the hoistway were tailed from their vertical position in the hoistway to a horizontal position. At the top of the hoistway the new feedwater heaters were landed on the yoke of a multi-roller truck or "dolly". There was some difficulty landing the trunnion pins in the yoke because of clearance problems so that it was necessary to keep the new feedwater heaters elevated as they were rotated into their horizontal position.

80. The actual performance of the tailing operation at the top of the hoistway differed for the old and new feedwater heaters. With respect to the removal of the old feedwater heaters, five out of the six old feedwater heaters were tailed at the top of the hoistway by the U.A. The U.A. members signaled and rigged for this operation. For the removal of the old feedwater heaters, the Ironworkers tailed only one of the old feedwater heaters at the top of the hoistway.

81. On the other hand, the six new feedwater heaters being installed were all tailed at the top of the hoistway and landed in the yoke by the Ironworkers. The new feedwater heaters were left sitting on the yoke and were blocked up with wood by the Ironworkers. From there they were eventually lifted by the U.A. who removed the yoke, landed the feedwater heater on the track runway and transported it to the point of installation.

82. We note that the yoke for the new feedwater heaters was made of structural steel and fabricated by the Ironworkers. There is no dispute about the fabrication of this yoke.

83. All of the tailing operation at the top of the hoistway is in dispute between the parties. Each trade claims all of the rigging and signalling associated with all of the tailing of all the feedwater heaters at the top of the hoistway.

84. During the course of the proceedings the parties resolved those items originally in dispute between them which related to the rigging and signalling for the timberline hoist. Thus there is no dispute that there was substantial structural work required to alter the hoistway and install the timberline hoist. This work was performed by the Ironworkers and is not in dispute. Similarly, all of the signalling and rigging for use of the timberline hoist was done by the Ironworkers and is not in dispute. The signalling for the timberline hoist was done by radio and it is the undisputed and accepted past practice of Ontario Hydro to assign radio signalling for the timberline hoist to the Ironworkers.

85. At the bottom on the hoistway it was again necessary to "tail" the old feedwater heaters and move the vessels once again into a horizontal position. This tailing operation for the old feedwater heaters at the bottom of the hoistway was performed by the U.A. and remains in dispute between the parties. On the other hand the Ironworkers tailed the new feedwater heaters (from the horizontal to the vertical position) at the bottom of the hoistway. The performance of that work is also in dispute. Both trades claim all of the work associated with the tailing of the new and old feedwater heaters at the bottom of the hoistway.

86. After the old feedwater heaters had been tailed at the bottom, the feedwater heaters were "dropped" and all rigging was removed from the units. They were then re-rigged by the Ironworkers and were lifted and laterally moved from the bottom of the hoistway across the entire length of the turbine hall to the loading bay area using the turbine hall crane. This is a large bridge crane operated by Operating Engineers. At the loading bay the old feedwater heaters were lifted and transported onto flat bed trailers. The work associated with the re-installation of the new feedwater heaters was in the reverse order. All of the rigging and signalling work associated with the use of the turbine hall crane was performed by the Ironworkers and is no longer in dispute in this proceeding.

87. The removal and reinstallation of the two feedwater heaters at the lower elevation in unit 6 was performed by a different method. A temporary platform was placed on the turbine hall floor. Given the elevation at which these two feedwater heaters were located, and the configuration of piping surrounding the feedwater heaters it was possible through the selective removal of some of the pipes to "pick-up" the feedwater heaters from this temporary platform using the turbine hall crane.

88. In order to move the feedwater heaters the distance between the platform and their point of installation a temporary track runway system was constructed in a manner similar to that already detailed. That tracking system extended from the location of the feedwater heaters out to the platform. The construction of that tracking system remains in dispute between the parties.

89. These two feedwater heaters were disconnected and reconnected by the U.A. That work is not in dispute. The removal of pipe in order to permit the turbine hall crane access to the feedwater heaters was also done by the U.A. and is not in dispute.

90. The feedwater heaters were laterally transported along the track runway using multi-ton rollers and chain falls. That work is in dispute.

91. Once upon the platform the feedwater heaters were rigged to the turbine hall crane, lifted by that crane and transported over to the loading bay where they were loaded onto a flat bed trailer and removed from site. All signalling and rigging for the turbine hall crane was done by the Ironworkers and is not in dispute. There was no requirement to "tail" these two feedwater heaters at any point as they were laterally transported, lifted and placed on the flat bed trailer in a horizontal position.

The Decision - Fabrication and Installation of the Track Runway System

92. Having regard to all of the evidence and submissions of the parties we have determined that:

all work in connection with the fabrication and installation of structural steel floor falsework deck and track runway consisting of structural steel beams, channel iron, hollow structural steel shapes and plate

was improperly assigned to the U.A. That work should have been assigned to and performed by Ironworkers.

93. We note that we are not persuaded by the assertion of the U.A. that "the fabrication and installation of the deck and runway are analogous to the fabrication and installation of pipe supports since both exist for a purpose relating only to one trade". That analogy, although possible is not convincing.

94. We find that the Board's usual criteria of skills, training, safety, economy and efficiency, the existence of trade agreements or arrangements as to jurisdiction and the collective bargaining relationships are relatively equal as between the two trades. None of these enumerated criteria point in any particular fashion to the assignment of that work to either trade in preference to the other. We have placed no reliance upon the evidence or submissions of the parties with respect to the criteria of the constitutions of the trade unions.

95. The past jurisprudence of the Board has generally enumerated and examined each of these various criteria. A careful review of that jurisprudence however indicates that the primary focus of the Board in deciding a complaint concerning work jurisdiction is upon the employer and area past practice evidence. It is the rare and unusual jurisdictional dispute complaint in which the Board does not attach significant and primary weight to the area and employer past practice. Where appropriate these two criteria are measured and balanced together with the factors relating to economy efficiency and safety. The experience of the Board has shown that inevitably each of the disputing trade unions can point to some measure of skill or training and some language in either its collective agreement or constitution to support its claim. Generally, however and in the

absence of some prohibition which prohibits one trade from performing the work (for example a statutory enactment which precludes any person other than a qualified, certified member of a trade from performing the work) the enumerated criteria other than area and employer practice (together with safety and economy and efficiency where appropriate) will have little if any value when balanced against area and employer practice evidence. The real crux of most jurisdictional disputes revolves around these two past practice criteria. This complaint is no exception. In recognition of that fact the parties quite properly did not spend much time calling evidence or making representations about the other criteria. Each concentrated and focused upon the past practice evidence.

96. We find the employer and area past practice evidence with respect to the steel floor falsework and track runway to be inconsistent. Each trade can point to at least some specific examples where it has been responsible for the lateral movement of piping equipment to the point of installation using some sort of track runway system. On balance, however the Ironworkers' evidence concerning the construction and use of a track system disclosed a superior claim to that of the U.A.

97. The U.A. did tender evidence about the installation of some track runway systems similar to the track runway in dispute. Thus, we heard about the installation of the I-Beam used as a track runway on the roof of the reactor auxiliary bay at Pickering "A". We also heard evidence about a steel runway used in connection with the removal for repairs of the moderator heat exchangers at Darlington Nuclear Generating Station.

98. The greater majority of the U.A. evidence however indicated that when the U.A. was responsible for the lateral movement of its equipment, its more common practice was to merely set steel plate directly on top of the concrete floor as the equipment was moved along to the point of installation. This was referred to in the evidence as the "human chain" technique. Steel plate was placed on concrete, the equipment was rolled on and over it, and as movement of the equipment progressed the steel plate at the rear of the equipment was lifted and placed again in front of the equipment thereby forming a continuous chain of steel plate to the point of installation.

99. We do not equate this human chain technique with the construction of the track runway which forms the basis for this jurisdiction dispute complaint.

100. On balance and focusing particularly upon the nature of the work and the work functions associated with the fabrication and installation of the steel floor falsework and track runway we find that the past practice criteria favours an assignment of this work to the Ironworkers. As a result we award and direct that the work set out in paragraph 92 herein be assigned to the Ironworkers.

The Decision - Signalling and Rigging Work

101. With respect to this aspect of the work in dispute we find that none of the criteria of trade union constitution, claims to jurisdiction, collective bargaining agreements, skills, training, safety and efficiency is particularly persuasive or favour an assignment of one trade over the other. We have already addressed the criteria of trade agreements or arrangements as to jurisdiction in this decision. In the circumstances of this case that factor also does not affect the assignment of the work. Once again it is the employer and area past practice which is of primary importance in determining the assignment of the work in dispute.

102. With respect to the signalling and rigging work we find that the employer's own past practice is to assign to the Ironworkers the "handling" of piping equipment such as the feedwater heaters when power equipment is used. That "handling" necessarily includes all rigging and signalling associated with the handling. The handling of piping equipment by the Ironworkers using power equipment however is only to the approximate point of installation. The interpretation given to the "approximate point of installation" has undoubtedly varied. That in itself is not surprising given the number and variety of pieces of equipment which have been moved over the years and the diverse locations to or from which that movement has taken place. Generally however that "approximate point of installation" can be related to the last use of power equipment. Once power equipment is no longer in use the U.A. has generally performed all handling (and all rigging and signalling associated with that handling) of the piping equipment up to and including its actual installation.

103. We find that the overwhelming practice is to view the use of the tugger as a tool of the trade. We do not agree with the suggestion that either the tugger or the hydraulic jacks used to lift and lower tile feedwater heaters are "power equipment".

104. We further find that in the greater majority of cases, and after the completion of the last power lift, the U.A. tradesmen have been responsible for signalling and rigging for the lateral movement of piping equipment at the installation elevation. This responsibility for lateral movement involved the U.A. using any one of a tugger, manual chain fall, come-along, turfer, V-Dolly, pallet mover etc.

105. Therefore, on the basis of the past practice and employer practice evidence before us, and after consideration of the submissions of the parties, we declare and direct that the rigging and signalling in connection with the removal and replacement of the feedwater heaters at Lakeview T.G.S. is to be assigned as follows:

(a) the raising and lowering of the feedwater heaters using hydraulic jacks at the point of installation is to the U.A.;

(b) the rigging of the feedwater heaters for placement on the multi-ton rollers is to the U.A.;

(c) the lateral transport of the feedwater heaters on the track runway system between the point of installation and the hoistway is to the U.A.;

(d) the lateral transport of the feedwater heaters on the track runway system from their point of installation at the 304 elevation in unit 6 to the platform placed on the turbine hall floor is to the U.A.;

(e) the top-of-the-hoistway tailing of the feedwater heaters which are to be removed and the signalling and rigging for same is to be performed by a composite crew of U.A. and Ironworkers. In this operation the Ironworkers shall handle and be responsible for the main hook of the timberline hoist;

(f) the top-of-the-hoistway tailing and landing in the yoke of the new feedwater heaters to be installed is to the Ironworkers;

(g) the signalling and rigging of the feedwater heaters for the timberline hoist is to the Ironworkers;

(h) the bottom-of-the-hoistway tailing of all the feedwater heaters is to the Ironworkers;

(i) the signalling and rigging for hoisting and lateral movement of the feedwater heaters using the turbine hall crane is to the Ironworkers; and

(j) at the loading bay the signalling and rigging for the turbine hall crane to lift and laterally transport the feedwater heaters onto the flat bed trailers is to the Ironworkers.

DECISION OF BOARD MEMBER JOHN KURCHAK; August 28, 1992

1. I concur with the decision in all respects except wherein it deals with the CooperConnolly Agreement. Originally, as noted, I accepted the premise that Agreements between trades are not cast in stone and that this one was properly terminated. I believed that when the evidence showed that the General President of the United Association wrote to the General President of the Iron Workers Union, abrogating the Agreement, that it was a valid exercise. Going through the convention procedures as they had done seemed to make it all right and proper. However, after reading references to court cases, involving "common-law", "commercial law", and the "law of contracts", it struck me that perhaps it might be better to take a closer look at the issue strictly in the light of labour relations.

2. The rules that govern the workplace under the scheme of collective bargaining did not spring from contract rules - commercial law - or common law precedents, but rather developed in spite of them. The advent of collective bargaining set in motion its own set of rules and regulations to govern the process of industrial relations. Further, I have a fear that introducing court cases that are unrelated to labour issues brings in an element that could lead to further problems and complications in the future. Following the demise of the "Labour Court" set up under the 1943 Ontario Legislation, it was believed that lay practitioners could bring their own cases to the Board. It has not developed that way. The introduction of complicated unrelated court decisions increases the likelihood that Board procedures will be taken further out of the hands of those most directly affected by the issues brought before us. This is a trend which should be avoided.

3. The structures of the building trades organizations have a background and identity separate and far removed from commercial interests, whether they be related to an employer giving proper notice of termination in a non-union situation, or the rising costs in a commercial transaction.

Page 18 Trade Unions in Canada - Eugene Forsey.

The first Toronto union was probably the United Amicable Trade and Benefit Society of Journeymen Bricklayers, Plasterers, and Masons, which, in 1831, demanded a 10-hour day: 5 am to 6 pm, with two hours off for meals. In December 1833 this body resolved that its members would work only for masters of the respective trades and only with other members of the society. Wages is left entirely to each employer."

4. We can see that the building tradesmen, from an early age, did not "do business" under any "laws of contract". A lot of hard work preceded the mantle of "legitimacy" that is enjoyed today. To quote further, from another source, with regard to common-law, we see some of the obstacles that had to be overcome.

5. Page 142 in the "Canadian Labour Economics" quoted from the Canadian Journal of Economic and Political Science Vol. XVII No. 1 - February 1951. (Stuart Jamieson).

Governments in both countries up to the mid-1930's maintained a rather negative policy in industrial relations that operated on the whole to the disadvantage of organized labour. Employers in all but a few industries remained for the most part hostile to trade unions, and used a wide variety of tactics to prevent their employees from bec6ming organized. They enjoyed at the same time both superior bargaining power and a favourable legal status. Public regulation of industrial relations came almost entirely under the common law which, as interpreted and administered by the courts, placed severe restrictions upon organized labour."

6. It took over one hundred years for Labour to achieve recognition by law. "The Act of

1943 abolished the common law doctrines of conspiracy and restraint of trade as they applied to

trade unions and gave employees the right to participate in union activities" (OLRB Annual

Report 1981-82).

7. The building trade unions have a long history in the development of industrial relations with their counterparts in the construction industry. Agreements between the trades and Decisions of Records dating back to 1904 are listed in the "Plan for Settling Jurisdictional Disputes, nationally and locally". These decisions have an air of permanency, but provisions have been made for orderly change.

8. If Mr. Ward, General President of the United Association had taken a course of action in which he intended the General President of the Iron Workers to negotiate or re-evaluate the Cooper-Connolly Agreement it seems to me that would have made better labour relations sense. Building Trade Unions have had a long history of self-destruction through their jurisdictional battles. It is high time that they put their "Act" in order in the interest of good labour relations practice and self-preservation. Arbitrarily abrogating agreements is not the way to go. I would deny them that right.