[1992] OLRB Rep. January 6
2505-90-JD Labourers' International Union of North America, Local 1089, Complainant v. International Brotherhood of Electrical Workers, Local 530 and Adam Clark Company Ltd., Respondents
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: James Hayes and Bob Leone for the complainant; Laurence C. Arnold, Frazer Collins and Ralph Tersigni for the respondent trade union; R. Andrew Staniusz and Lionel Coleman for the respondent employer.
DECISION OF THE BOARD; January 2, 1992
This is a jurisdictional dispute complaint filed pursuant to section 91 of the Labour Relations Act.
The parties' postitions are summarized in the pre-hearing conference memorandum dated June 17, 1991. The parties agreed on the description of the work in dispute but were unable to agree on the scope of the relevant past practice evidence respecting the work in dispute.
The respondent, International Brotherhood of Electrical Workers, Local 530, (IBEW) takes the position that the industry (or area) past practice should be limited to the ICI sector in Board Area No. 2 for all types of duct systems.
The complainant, Labourers' International Union of North America, Local 1089 (Labourers) and the respondent employer submit that industry practice should be limited to Board Area No. 2 respecting the installation of precast concrete duct systems for electrical cables, of which the Trenwa Duct System is one type, but not restricted to the ICI sector.
The parties requested that the Board hear and decide as a preliminary matter the scope of the relevant past practice evidence with respect to the disputed work. The parties agreed that they would be bound by the decision and would abide by it whether or not this panel heard the complaint on the merits. The parties further agreed that this panel or another panel may hear the complaint as set out in the pre-hearing conference memorandum.
The respondent IBEW submits there are two issues for the Board to determine. One is whether the evidence should be restricted to the ICI sector. The second issue is whether evidence with respect to similar conduit duct banks is admissible evidence subject to the discretion of the panel hearing the matter to determine its weight or relevance.
Counsel for IBEW cited a number of cases in support of its position to limit the evidence to the ICI sector. Commonwealth Construction Company, [1991] OLRB Rep. June 742 states:
A review of the cases indicates that "industry" practice generally refers to the construction industry. However, the Act itself and the trade unions and employers engaged in the construction industry have recognized that the construction industry has a number of different "divisions" or "sectors" as determined by 'work characteristics". (See section 117(e) of the Act). Within the construction industry there may be a different "industry practice" within these various sectors. A review of the jurisdictional dispute decisions rendered by the Board indicate that it has been generally accepted (or at least not addressed in the decisions or disputed by the parties) that in the adjudication of jurisdictional dispute complaints the Board should limit the industry practice evidence to that sector or division of the construction industry in which the dispute arose. In so doing the Board and the parties implicitly acknowledge that the history of organizing in the construction industry and the work jurisdiction claimed by the trades may vary from sector to sector.
There is no dispute that in this complaint the work in dispute falls within the ICI sector of the construction industry. Accordingly, we have determined that the industry practice evidence should be limited to that sector.
- Other cases cited include K-Line Maintenance and Construction Ltd., [1979] OLRB Rep. Dec. 1185, Urban Consolidated Construction Corporation Ltd., [1977] OLRB Rep. Feb. 41, Armbro Materials and Construction Ltd., [1986] OLRB Rep. May 579 and Dufferin Construction Co., [1988] OLRB Rep. Nov. 1164 which states in part:
….."In the Board's view, resolution of the sector dispute is likely to impact on the relevance of the criteria of employer preference and employer past practice as well."
The second part of the preliminary issue deals with the extent of evidence to be heard with respect to "duct bank systems". Counsel submits the IBEW should be given the opportunity to show, whether or not it succeeds, that the work in dispute, namely installation of duct bank systems which includes the Trenwa System, can be performed on the ground, above the ground or below the ground. The work is the installation of material for conduit duct banks, be they cable pans or trays, whether the material used is precast concrete, fibreglass, steel or other material, or some space age material such as graphite or ceramics. The respondent IBEW wants to be able to argue before the Board hearing the merits the weight that the Board should give to similar installations provided the Board admits evidence of installations of all types of duct banks and not restrict it to precast concrete duct banks.
Counsel for the IBEW submits the Board should either rule in favour of admitting evidence of all types of conduit duct bank installations or leave this issue for the next hearing panel. Cases cited in support of hearing evidence respecting different types of duct bank installations include Newmarch Inc., [1990] OLRB Rep. Feb. 179; Foster Wheeler Limited, [1989] OLRB Rep. Feb. 128.
Counsel for the complainant Labourers submits the Board should make its decision on the preliminary matter as set out in the pre-hearing conference memorandum. Counsel takes the position this is a precast concrete house or box in which cable is laid. There is no dispute over the end use nor is the end use relevant. The question is whether concrete forms (or housing) of this kind is properly within the jurisdiction of the electricians or the labourers.
Foster Wheeler Limited, supra takes a look at this issue ("particular work" as stated in section 91(1)) and defines the work in dispute relatively narrowly. In that case there were three areas in which the Board restricted the work:
- At the conclusion of the hearing of the submissions of the parties in respect of this matter the Board rendered the following oral ruling:
Section 91 of the Labour Relations Act authorizes this Board to inquire into a jurisdictional dispute involving "particular work". After having considered the submissions of the parties and in view of the language used in section 91 we make the following ruling in respect of the parameters of the evidence which the Board deems relevant in respect of this complaint.
The evidence to be adduced will be limited to the evidence within the following parameters:
Only evidence relating to field erected, steam generating boilers, for industrial application, originally erected using Boilermakers, which were or are being dismantled or disassembled in an operating environment in the province of Ontario.
In our view, the reference to "particular work" in section 91 compels the Board when examining "employer" and "area" Practice to inquire into work involving the same or similar type of structure, in the same or similar type of environment.
Counsel also cited Acco Canadian Material Handling. [1990] OLRB Rep. Sept. 915 which limited the evidence with respect to a specific system called "monoveyor".
Counsel for the complainant Labourers submits what is at issue here is quite simple, namely "putting concrete forms into the ground, on or below ground, and the labourers are claiming the work". Counsel agrees to the geographic scope of the evidence being Board Area No. 2. Counsel submits the Board has a standard practice with respect to Board area practice and with respect to sectors. The question is whether or not in a particular case the Board should deviate somewhat from its practice. The electricians wish to define the disputed work as broadly as possible so that anything described as duct banks becomes arguably relevant. If the work is restricted to ICI then the same work done on Ontario Hydro sites would become irrelevant. It is not reasonable to enquire into all types of duct banks but rule out evidence of the same work because it is in another sector. Counsel submits there is a balance to be struck.
In both Foster Wheeler Limited, supra, and Commonwealth Construction Company, supra, the Board went beyond Board Areas to get evidence before it and counsel for the Labourers asks on the same theory that the Board consider extending the evidence to the power sector or any other sector but do not open it up to days of evidence of work not in dispute. Counsel submits the issue should be narrow.
The respondent employer agrees with and adopts the Labourers submissions. In addition counsel submits this panel should rule on the issues put before it and not defer to the merits panel.
Counsel for the employer referred to paragraph two of Acco Canadian Material handling, supra, as being analogous to the situation before us. Labourers say it is the installation of precast concrete duct system of which Trenwa is one type. The electricians want to include all duct banks. The particular work in Acco Canadian Material Handling, supra. is the monorail not all other conveyor systems. Counsel also referred to Newmarch Inc., supra. for the proposition that the end use is not relevant:
- In the past, the Board has nor looked at the use made of the end product in determining jurisdictional dispute claims. Rather, the focus of the Board has been on the nature of the work in dispute, and the work performed by the employees in each trade. Thus, in Toronto Star Newspapers Ltd.,[1980] OLRB Rep. April 565, after referring to the decisions of the Quebec Labour Court sitting in appeal from a decision of a labour commissioner in La Presse Limited, and the Labour Relations Board of British Columbia in Re. Pacific Press, the Board stated at paragraph 19:
- We accept the conclusion reached in both Pacific Press. supra and La Presse, supra, that the Board must look to the nature of the work done by the employees and not the use made by the employer of the end product of the work in dispute. If the end product was to be cast as a primary criterion the result would be to downgrade the importance of skills and ability, and efficiency, as primary criteria. Clearly the skills associated with performing a work process and the efficiency with which it is performed are inter-related factors. A craft union is one whose members “are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or craft." When called upon to resolve competing work claims between craft unions the Board must look to the work and determine if the skills of one of the crafts are more closely related to the nature of the work in dispute and whether or not the use of these skills by persons trained in the craft will have a bearing on efficiency and economy. If we were to restrict ourselves to the end product these considerations, which must be central to the resolution of any jurisdictional dispute, would become irrelevant.
(See also Premier Pipe Line, [1988] OLRB Rep. Oct. 1068 at paragraph 26). We agree with and adopt these earlier observations of the Board. "End use" is not an appropriate criteria to assist in the determination of this jurisdictional dispute. Moreover, in this case, the evidence does not support the claim of the UA to either the Hollywood Rail or the support steel on the basis of "end use". Indeed, the evidence is to the contrary and highlights the difficulty in applying the "end use" criteria in jurisdictional dispute complaints.
The employer agrees with the Labourers that evidence beyond the ICI sector should be admitted. If end use is irrelevant then the same consideration should be applied to the sector. The Board looks to end use to determine what sector the work falls in. If there is no evidence of different practice in sectors it makes no sense to limit it. The characteristic of the work does not change from one sector to another.
In reply counsel for the IBEW stated they want to be able to show that this is work which traditionally is performed by the IBEW. The IBEW is only concerned with "houses" containing electrical cable regardless of the material used. Counsel submits sheet metal pans housing electrical cable for example are not installed by sheet metal workers but by electricians.
Counsel for the IBEW argues Acco Canadian Material Handling, supra, represents a middle ground between the extremes of Foster Wheeler, supra, on the one hand and Newmarch Inc.. supra, on the other. Paragraph 5 of Acco Canadian Material Handling, supra, states in part:
“……That raises the question of where is the sensible place to draw the line as to the past practice evidence to be heard. In the instant proceeding, in the Board's view, limiting past practice evidence to the two types of conveyor systems was that place. This is because the two systems include a sufficient variety of conveyors which might arguably be included in the term "monorail conveyor" so as to allow the parties full opportunity to present their evidence and make their submissions respecting the conclusions to be drawn by the Board from past practice evidence".
The IBEW is asking to have an opportunity to call evidence on installations of conduit duct bank systems as opposed to restricting the evidence to precast concrete duct systems.
Decision
The parties agreed to the past practice being limited to Board Area No. 2.
Having considered the submissions of the parties and the cases cited we are not persuaded to hear evidence of past practice outside the ICI sector. The dispute arose in the ICI sector. Looking to other sectors to determining who has jurisdiction in the ICI sector, in our view will expand the number of hearing days without significant benefit to the determination of the issue before the Board.
The remaining issue deals with how much evidence should be allowed in terms of the "particular work". The IBEW wants the Board to hear evidence of "all conduit duct banks". The complainant and the employer want the evidence restricted to precast concrete duct banks or system of which Trenwa is one type. The particular work in dispute replaced a metal duct bank which was above ground and installed by the electricians. The IBEW's view is that the disputed work involves electrical conduit duct banks which happen to be made of precast concrete. The Labourers and the company's view is that this work involves precast concrete housing or structures which happen to be carrying electrical cable.
The Labourers are only claiming duct banks made of precast concrete. There is no claim with respect to duct banks made of any other type of material. Evidence of installations of other types of duct banks consisting of materials other than precast concrete will not be of assistance to the Board to determine this particular jurisdictional dispute. The fact that electricians install sheet metal pans for electrical cable for example cannot be of assistance in determing whether the installations of precast concrete ducts is work performed by one trade or another.
Having regard to the above the scope of the past practice is restricted to precast concrete ducts in the ICI sector in Board Area No. 2. To expand the scope of past practice would add a significant number of days to the hearings without significant benefit.