United Brotherhood of Carpenters and Joiners of America, Local 18 v. Matthews Contracting Inc., 1992 CanLII 6775

[1992] OLRB Rep. October 1088

0562-92-G; 0769-92-M United Brotherhood of Carpenters and Joiners of America, Local 18, Applicant v. Matthews Contracting Inc., Respondent v. Labourers' International Union of North America, Ontario Provincial District Council, Inter­vener

BEFORE: S. Liang, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

DECISION OF THE BOARD; October 21, 1992

1. Board File No. 0562-92-G, a referral of grievance to arbitration, is adjourned pending the disposition of Board File No. 0769-92-M. Board File No. 0769-92-M is a proceeding brought pursuant to the provisions of section 153 of the Labour Relations Act (a "sector determination").

2. This interim decision of the Board deals with two preliminary issues raised by the par­ties with respect to the scope of the Board's inquiry and the scope of evidence relevant to the inquiry. These proceedings started with a grievance filed by the United Brotherhood of Carpenters and Joiners of America, Local 18 ("the Carpenters") against Matthews Contracting Inc. ("the company" or "Matthews") on May 19, 1992, claiming that Matthews is in violation of the collec­tive agreement binding the parties by its failure to employ Carpenters to perform certain work. The agreement under which the grievance is filed pertains to the industrial, commercial and institu­tional sector ("ICI") of the construction industry in Ontario and is a "provincial agreement" within the meaning of section 139 of the Act. Matthews takes the position that the work in question is not work in the ICI sector, but is work in the heavy engineering sector. The intervener, the Labourers' International Union of North America, Ontario Provincial District Council ("the Labourers") agrees with Matthews that the work in question is not in the ICI sector. In the alternative, the intervener states that the grievance is in essence a jurisdictional dispute which should be dealt with by the parties pursuant to the procedures under section 93 of the Act.

3. Prior to the second hearing date set for the referral of grievance (the first being adjourned on consent of the parties), the parties arrived at an agreement that the Board determine the sector issue pursuant to section 153 of the Act. Notice of the hearing was provided to a list of organizations which the parties judged as having an interest in the sector determination. After a further adjournment on agreement of the parties, the Board commenced the hearing of the matter on October 1, 1992. None of the parties to whom notice of the sector determination was provided appeared at this hearing.

4. The two preliminary issues relate to the scope of the work which is the subject of the sector determination, and the scope of evidence which is relevant to the determination. Matthews is engaged in the construction of a large underground concrete storage tank whose purpose is to hold storm run-off water and sanitary sewer material until these fluids can be processed by a sew­age processing plant, to which the tank is connected. The project is located in Hamilton. Before the construction of this tank, storm run-off simply flowed through sewer lines into Hamilton harbour. The construction contract held by Matthews includes the construction of a parking lot on top of the tank, as well as related sewer work. The Carpenters' grievance alleges that Matthews is in violation of the ICI agreement by its failure to employ any members of the Carpenters in the con­struction of the tank. The construction of the parking lot and the related sewer work are not included in the claim by the Carpenters. Members of the Labourers were involved in all aspects of the project.

5. As further background to this dispute, the Carpenters and Matthews signed a voluntary recognition agreement in March of 1991, binding Matthews to the ICI agreement. They also signed a corollary agreement which provided, among other things, that in the event that a bona fide ques­tion arises as to whether work performed or to be performed is within the ICI sector and hence covered by the agreement, the issue may be referred to the Board for determination. In such case, the Carpenters agree that it will not claim damages against Matthews with respect to such work, although this agreement not to claim damages does not apply where the Board has made a deter­mination that the same or substantially similar work falls within the ICI sector for the construction industry prior to the time when bids for the work on a project are received or filed. At the hearing before us, counsel for the Carpenters confirmed that the Carpenters are not seeking damages with respect to the present dispute.

6. Among the documents and correspondence which have been exchanged between the parties is a chart from the Carpenters which sets out a list of similar work across the province which the Carpenters claim has been performed using members of the Carpenters working under an ICI agreement.

7. The Labourers and Matthews object to the introduction of this evidence. It is the sub­mission of the Labourers that evidence as to how parties to similar projects have treated the work is irrelevant except as it pertains to the geographic area in which this dispute arises, and as pertains to this employer, which has practice throughout the province. Further, the Labourers assert that if it is relevant to know how other parties have treated this type of work, the Board will also have to hear evidence of projects involving non-union employees. Ultimately, it is argued, it will likely turn out that there is no generally accepted practice.

8. The Labourers also assert that the Board should not confine its sector determination to the construction of the storage tank, but should inquire into the project as a whole, including the road work and the sewer and watermain work. The agreement under which members of the Lab­ourers performed this work is referred to as the Heavy Engineering agreement; however, it also covers work in the roads and the sewer and watermain sectors. In the submission of counsel, there is a longstanding collective bargaining relationship between the Labourers and Matthews applying this multi-sector agreement to similar projects. Most of the reservoirs on which the Labourers have done work in the past are connected to sewers and involve road work, and it would be unrealistic for the Board to distinguish between the various parts of the project.

9. In the submission of counsel for Matthews, in a sector determination, the Board should only look to the practice of the parties where it is dealing with a "grey area", and such practice should be confined to local practice. Where the primary focus of the Board's inquiry is the work characteristics which distinguish one sector from another, to hear evidence as to a list of projects throughout the province turns the inquiry into something akin to a jurisdiction dispute. He agreed with counsel for the Labourers that at the end of the day, the evidence would more likely than not be inconsistent. Matthews also adopts the position of the Labourers that it is relevant to know how Matthews performs its work throughout the province. On the other issue raised by the Labourers, Matthews takes the position that as the work which is the subject of the Carpenters' grievance is the construction of a storage tank, it is not within the Board's mandate to expand the sector determination to include the road work or the sewer and watermain work. However, evidence will be led on the other aspects of the project as are necessary to place the construction of the tank in con­text. In any event, counsel submitted that questions as to the admissibility of evidence which goes to aspects of this project other than the storage tank should be dealt with by the Board during the course of hearing the evidence.

10. Counsel for the Carpenters submitted that the Board should hear evidence as to how other general contractors in the construction industry perform this work. In his submission, other companies performing this work use ICI trades under the terms of ICI collective agreements. Although the industry practice is only one factor in determining which sector a project falls into, it is an important factor in this case. The Board was referred to the history of the introduction of "sectors" into the Act. In counsel's submission, the notion of sectors as adopted by Ontario's legis­lature was never tied to geographic areas, but was rooted in actual bargaining patterns at the time. It would be artificial to limit the scope of the Board's inquiry to the Board's geographic areas. It is especially inappropriate to limit the Board's inquiry in this manner, it is argued, where both trades are bound to province-wide collective agreements in the heavy engineering sector, and province-wide designations in the ICI sector. Although the Board has looked at local practice in a sector determination, it has done so where a collective agreement in issue was a local agreement only.

11. Counsel for the Carpenters also objects to the notion that the Board should look to the practice of using non-union trades, as part of industry practice. In his submission, in an employ­ment context where sector is irrelevant, such practice cannot be of assistance to the Board in a sec­tor determination.

12. In their arguments, the parties referred us to Bird Construction Limited, [1984] OLRB Rep. Dec. 1688; Sikora Mechanical Ltd., [1982] OLRB Rep. June 941; Sutherland–Schultz Limited, [1988] OLRB Rep. June 632; West York Construction Ltd., [1983] OLRB Rep. Dec. 2132; Armbro Materials and Construction Limited, [19871 OLRB Rep. July 948; Steen Contractors Limited, [1989] OLRB Rep. Nov. 1173; Dufferin Construction Company, Board File No. 1067-88-G, dated August 31, 1992, as yet unreported, and Sword Contracting Limited, [1985] OLRB Rep. May 743.

Decision of the Board

13. Section 153 of the Act states:

14. The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institu­tional sector of the construction industry referred to in the definition of "sector" in section 119.

15. The analysis of the Board in Heavy Construction Association, supra, has often been referred to in cases which have arisen under section 153. Although that case is an application for accreditation, the Board in the course of defining an appropriate unit of employers was required to determine whether certain work came within the heavy engineering sector. In Dufferin Construc­tion Company, supra, the Board summarized some of the reasons in the above case as follows:

16. The Board in that decision, begins its analysis of the statutory definition of sector with its observation that there are three components to the definition. They are:

(1) a sector is a division of the construction industry;

(2) a prescription that divisions of the construction industry be determined by reference to work characteristics; and,

(3) the inclusion of seven enumerated sectors "... as meanings of the term sec­tor of the construction industry.":

• the ICI sector,

• the residential sector,

• the sewers and watermains sector,

• the roads sector,

• the heavy engineering sector,

• the pipeline sector and,

• the electrical power systems sector.

The Board concludes its analysis at paragraph 14 by identifying six examples of work character­istics to be used as criteria for distinguishing one of the seven enumerated sectors from the oth­ers. They are:

(1) the type of problems to be dealt with at the job site;

(2) the types of solutions resorted to at certain job sites;

(3) the material used;

(4) the relative importance of certain specifications;

(5) the variety of skills and trades; and,

(6) certain characteristic relations with employees.

The Board expressed the caution that these not be taken as an exhaustive list of work character­istics, but as examples of "... particular characteristics which differ between the various sectors enumerated in the Act".

15. The evidence which the Carpenters seek to introduce as to the practice of contractors throughout Ontario relates to factor (6) identified above, "certain characteristic relations with employees". It is submitted that this factor involves an analysis of how other contractors have per­formed the same work, specifically what trades are employed, and what collective agreement is applied.

16. At first glance, it is not obvious that the employment practices of contractors is a com­pelling factor in determining, for the purposes of the Act, the sector in which particular work lies. As with any statutory definition, parties are not generally free to construct their own meaning of the statute; ultimately, it is within the Board's hands to interpret the provisions of the Act in accor­dance with the language used and the surrounding legislative purpose. However, it would also be unwise for the Board to ignore existing, longstanding understandings in the construction industry about how work is to be performed. The direction in section 153 of the Act that sectors are to be distinguished according to their different "work characteristics" takes into account, in addition to a number of other factors, the fact that employment relations may be ordered in a different way in different sectors.

17. Thus, for example, the fact that a particular type of work is generally performed by con­tractors under the terms of a particular sector-specific agreement, may tell the Board something about the characteristics of the work which lend itself to this type of organization. The fact that a contractor performs the work with its own forces, under the terms of collective agreements to which it is bound, or sublets part of the work to other contractors which perform the subcontract under the terms of agreements in the same sector, may again tell the Board something about the characteristics of the work. What are the employment demands of the work? Does it require a steady workforce over many months of a limited number of trades, or a changing complement of workers from day to day or week to week? This panel is not stating that the answers to these sorts of questions will play a large role in its determinations, but only indicating that "characteristic rela­tions with employees" will be taken into account by the Board where it reveals something about the way in which work is organized in the different sectors.

18. The arguments that have been advanced by the parties opposing the introduction of such evidence on a province-wide basis are based on two grounds: efficiency of the hearing, and likely probative value. It is argued that the potential scope of such evidence is so broad that this panel will find itself engaged in interminable proceedings, only to find at the end of the day that there is no consistent general practice in the industry. The question is not free from doubt. The Board is always concerned that it does not unnecessarily complicate proceedings with evidence of doubtful value. It may be that in other cases, the inefficiency of such a hearing, coupled with other factors, will lead the Board to restrict evidence of employee relations to a geographic area. In the case before us, this panel of the Board is not convinced that it would be appropriate to do so. Unlike in some of the cases cited to us by the parties, there do not appear to be either longstanding locally-based industry organizations or collective agreements which provide the framework for the practice in the area.

19. Further, the parties who are before the Board have evidently anticipated that they may find themselves in a dispute over whether work performed by Matthews is in the ICI or another sector, and Matthews and the Carpenters have even provided for this event in an agreement. This is a bona fide dispute the determination of which will presumably guide the parties in their future relations. This employer apparently performs work throughout the province. The ICI agreement which the Carpenters seek to apply is province-wide. The agreement which the Labourers seek to apply is also province-wide. It appears to this panel that in order to give these parties the best answer to this dispute and in order that there be as much certainty as possible in resolving similar disputes which may arise between the parties in other areas of the province, the parties will be bet­ter served by a broader-based inquiry.

20. Accordingly, we have decided that the parties are free to rely on industry practice throughout the province in regards to employee relations on the type of work in dispute. We do not at this point rule on the admissibility of evidence concerning non-union employers.

21. It thus remains for us to define the work which is the subject of our sector determina­tion. This does not appear to be a difficult question. The work which is the subject of the grievance relates to the installation of a large underground concrete storage tank associated with water treat­ment purposes. It is this work which the Carpenters claim to be covered by their ICI agreement. Indeed, the Carpenters do not dispute that other work performed by Matthews under the same construction contract, is work in the roads sector and the sewer and watermain sector. There is thus no dispute as to what sector this other work pertains to, and no reason for the Board to inquire into it.

22. This does not preclude the Labourers or Matthews from relying on the nature of the project as a whole, as the Labourers have indicated they intend to do, in support of their position on the sector issue.

23. In accordance with our findings, we direct the parties to file with the Board and exchange detailed summaries of any evidence which they intend to call on the issue of employee relations with respect to the work in dispute, on or prior to October 30, 1992. The hearing of this matter will continue on Friday, November 6, 1992 and will take place at the Board's Offices, 6th Floor, 400 University Avenue, Toronto, Ontario at 9:30 a.m.