International Brotherhood of Electrical Workers, Local 353 v. Honeywell Limited, 1993 CanLII 7797

[1992] OLRB Rep. February 128

1227-89-G International Brotherhood of Electrical Workers, Local 353, Applicant and v. Honeywell Limited, Respondent

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: A. M. Minsky and Bill Robinson for the applicant; Barry Brown, John Kennedy, M. T. deCoeli, Jim Bull and Paul Birosall for the respondent.

DECISION OF THE BOARD; February 19, 1993

1. The applicant has referred a grievance in the construction industry concerning the inter­pretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 126 [formerly section 124] of the Labour Rela­tions Act.

2. The grievance alleges violation of section 200, 505 and 700 of the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario ("ETBA") and the International Brotherhood of Electrical Workers ("IBEW") and The IBEW Construction Council of Ontario ("IBEW CCO"). Section 200, 505 and 700 read as follows:

200 UNION JURISDICTION

The Contractor agrees to recognize the inside and outside jurisdictions as outlined in the Constitution of the IBEW in the performance of all electrical work performed within the geographic jurisdiction of the Union as hereinafter defined.

Inside Work

All electrical signs, all street electrical decorations when no messenger or guy wire is necessary for support. Installation, construction, inspection, operation, maintenance and repair of all elec­trical work in isolated plants and within property lines of any given property and beginning at the secondary side of the towers, including wires or cables and other apparatus supported there­from and except all outdoor substations as defined in Outside Work hereof.

When aerial wires or cables are used to provide electric current for buildings or structures within the property lines of any given property the inside men's jurisdiction shall start immediately after the first point of attachment of such aerial wires or cables to such buildings or structures.

505 SUBCONTRACTING

The Company shall not directly or indirectly sublet any work under the jurisdiction of this Agreement to any other Employer or Employee who is not a party to an IBEW Construction Agreement nor require any employee to work on a piecework basis.

700 HIRING PROCEDURE

The Contractor agrees to hire and employ only members of the International Brotherhood of Electrical Workers on all electrical work. The Contractor shall have the right to select and name-hire all Foremen. When making appointments to the Foreman level, the employers will give consideration to those Journeymen they presently employ. All hiring will be done through the Local Union Office and no one will be employed unless they are in possession of a clearance card from the Local Union Office.

3. It is alleged that the respondent employed non-union members to perform work cov­ered by the provincial agreement without union clearance. The work giving rise to this grievance was performed at the Markham-Stouffville Hospital Project. Honeywell was a subcontractor to Ellis Don on the Markham project. It involves the installation and programming of programmable controllers for the environmental control system and fire and smoke alarm systems at the Mark­ham-Stouffville Hospital. Part of the work involves the programming and insertion of EPROMS which is an acronym for "Erasable Programmable Read Only Memory" in connection with the Environment Management System. (EMS)

4. During the twenty days that were devoted to hearing evidence and argument regarding this matter the Board heard extensive testimony from thirteen witnesses. A total of seventy-three Exhibits were put before the Board. The proceeding took from January of 1990 to January of 1991 to complete.

5. A number of documents were put before the Board on agreement of the parties. It is further agreed that the applicant and respondent are bound to the ICI agreement (Exhibit 1); that the respondent is named on Schedule F of the accreditation order; that the July 20 grievance is arbitrable and there is no objection to the Board's jurisdiction to hear this grievance.

6. At the first day of hearing, January 24, 1990 Honeywell agreed it was bound to the ICI agreement but took the position that the work which gave rise to the grievance is not covered by the ICI agreement. By letter dated May 10, 1990 (and after six days of hearing) the respondent advised the applicant that while it signed a voluntary recognition agreement in June of 1988 it did not bind Honeywell in all sectors because of alleged misrepresentations by the union official.

7. The Board heard the evidence of Mrs. Jo-Anne MacEachern, who has been employed as Secretary to the Business Manager of IBEW Local 120 for fourteen years. Mrs. MacEachern testified that she signed Exhibit 46 on behalf of the union. Exhibit 46 is the voluntary recognition agreement signed by Michael W. Frijters as the "Authorized Representative" of the respondent. The document is dated June 16, 1988 and reads as follows:

2001 NEW SIGNATORIES - Voluntary Recognition Agreement

To Whom It May Concern:

This will acknowledge receipt of a copy of the Principal Agreement and Local Union Appendi­ces covering all Electrical Work as agreed to by the Electrical Trade Bargaining Agency of the

Electrical Contractors Association of Ontario and the International Brotherhood of Electrical

Workers and the IBEW Construction Council of Ontario representing the following affiliated

Local Unions, 105, 115, 120, 303, 353, 402, 530, 586, 594, 773, 804, 894, 1687 and 1739. This

Agreement became effective on May 28, 1986 and will expire on April 30, 1988.

We have examined this Agreement and the firm I represent agrees to comply with the hours, wages and conditions of employment as set forth therein. The affixing of my signature to this Voluntary Recognition Agreement shall be as binding on the firm I represent as though my sig­nature was affixed to the Principal Agreement, Local Appendices and applicable Amendments thereto.

We further agree that any renewal or revision thereof negotiated between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario, will be binding upon both of the parties signatory to this Voluntary Recognition Agreement.

This understanding shall become effective on June 20, 1988, and remain in effect from year to year thereafter, or until notice to terminate is given under provisions of Section 3 of the said Agreement.

SIGNED this 16 day of June, 1988, in London, Ontario.

SIGNED FOR THE CONTRACTOR:

Honeywell Limited

Registered Name of Company

"Michael W. Friiters"______________________

Signature of Authorized Representative

555 Consortium Court

London, Ontario

N6E 2S6 (519) 685-2010__________

Company Address and Telephone Number

SIGNED FOR THE UNION:

LOCAL UNION NO. 120, of the International

Brotherhood of Electrical Workers.

"John D. Pender, Business Manager"_________

Signature of Authorized Representative

8. Mrs. MacEachern prepared the document by typing in the appropriate information rior to Mr. Frijters' arrival. She witnessed his signature and signed for John Pender, the Business Manager. Mrs. MacEachern understood from Mr. Pender that Mike Frijters would come in to the office to sign the voluntary recognition. John Pender was out of the office at the time of signing. The signing took five to ten minutes. Mr. Frijters received an information package including a sample remittance form for benefit contributions and a wage schedule for the payroll office. When the new collective agreements were printed Mrs. MacEachern gave a copy to Martin Amos, the Foreman on the Honeywell job.

9. Martin Amos and Ed Baker, an apprentice, were dispatched by Local 120 to the respondent's job site pursuant to the collective agreement. They were still at work at the time of this proceeding. Benefit contributions have been made in accordance with the agreement. In the fall of 1989 three members were dispatched to the respondent's job site pursuant to the collective agreement.

10. John Pender, Business Manager of Local 120, testified that in May or June of 1988 Mike Frijters contacted him regarding Martin Amos. Honeywell was familiar with Amos' work and wanted to hire him. There were some discussions about signing an agreement with Local 120 and that Amos could work as well under the Sarnia agreement. Arrangements were made for Mr. Frijters to sign the agreement. It was the practice for the Secretary to sign for Mr. Pender in his absence. At no time, according to Mr. Pender, was there any suggestion by Honeywell that the agreement was not valid or enforceable.

11. Pender testified that Honeywell used the services of a union subcontractor with an agreement with the IBEW. Martin Amos worked for that subcontractor. That is how Honeywell became aware of Mr. Amos and wanted to hire him directly. Pender advised Frijters if he wanted to hire Martin he would have to sign an agreement as there was none on file with the IBEW in London. Pender was not aware if Honeywell was already bound to the provincial agreement. Pen­der's evidence is that if a contractor wants members of his local he asks them to sign a voluntary recognition agreement. There was no discussion as to whether Honeywell was already bound. No discussion took place with respect to the consequences of signing the voluntary recognition agree­ment as to the scope of the collective agreement which includes service and maintenance work. There was discussion about the mobility of IBEW members. It was Pender's impression that the respondent was aware of the various provisions of the collective agreement. No collective agree­ment was sent to the respondent.

12. Mr. Pender was cross examined extensively on what he told Mr. Frijters during the dis­cussions leading up to the signing of the voluntary recognition agreement. No specific allegation was put to Mr. Pender. General questions such as "Why don't you tell us everything you told him about signing this agreement?" were put to Pender.

13. When the respondent called its witnesses it put certain questions to Mr. Frijters objec­ted to by the applicant. Counsel for the applicant objected to the evidence as it contradicted Mr. Pender's evidence. Counsel contends it should have been put to Mr. Pender when he was cross examined that Mr. Frijters' evidence would be that he did not speak to him, citing the rule Browne v. Dunn. The issue of the voluntary recognition agreement was raised May 3 and 10. Mr. Pender testified June 5. The position taken by the respondent May 10 was that there was some misrepre­sentation by the union official. No questions about any misrepresentations were put to Pender or MacEachern in their cross examination.

14. Counsel for the respondent submits Browne and Dunn is not a rule to exclude evidence. The issue is "has Mr. Pender been treated fairly at the end of the day, not should the Board refuse to hear some fact." It has been the respondent's position from the beginning that this voluntary recognition agreement is not valid because of the circumstances surrounding the signing. Whether the misrepresentations were made by Mr. Pender or his Secretary has no effect on the material misrepresentations made to Mr. Frijters. Little turns on whether it was Mr. Pender or his Secretary who told Mr. Frijters what the effect of the agreement would be. What is important is the nature of the misrepresentation.

15. Counsel for the respondent submits at the time of cross examining Mr. Pender he was not aware there was a discrepancy over who verbalized the misrepresentation. The content of the misrepresentation was put to Mr. Pender. Mr. Pender can be called in reply, if there is any unfair­ness to Mr. Pender, to give his explanation. The "rule" speaks to fairness to Mr. Pender not to whether parties are allowed to call evidence.

16. The Board after considering the parties submissions made the following oral ruling on December 13, 1990:

"The respondent had ample opportunity to put questions to Mr. Pender and Mrs. MacEachern with respect to the circumstances surrounding the signing of Exhibit 46.

The alleged misrepresentation was raised by the respondent. It is the respondent who is in pos­session of the facts surrounding the circumstances of the signing of this document and whatever conversations took place with whatever union official prior to the signing.

The respondent cannot now put evidence before the Board that contradicts Pender and Mac­Eachern without having put those witnesses on notice. None of us can recall any such questions but we have not reviewed all the evidence. Unless the respondent can point to any questions put to MacEachern and Pender putting them on notice that their evidence would be contradicted we will not allow the questions.

These witnesses have been deprived of the opportunity to explain why their version of events may be different at the time of giving their evidence. This is not the same as recalling them to give explanations after this witness has testified."

17. The respondent, in light of the Board's ruling, requested the Board to strike Frijters evidence from the record and withdrew the witness.

18. Counsel for the applicant submits that the evidence shows the work associated with the construction of the systems, the fire alarm system and the environmental control system, was per­formed contrary to the collective agreement. It is construction work within the ICI sector. There are two contracts for the supply, installation and construction of two automated computer based control systems, one environmental and one for the fire alarm system.

19. Counsel submits the work in question is construction work and is covered by the provin­cial agreement. Members of 353 were on the site working under the collective agreement at all material times. The applicant's position is that all of the work in question, described by the respon­dent as "commissioning work" is electrical construction work under the ICI agreement.

20. The applicant concedes for the purposes of this case certain work is an exception. The software programming requiring Pascal language (a high level computer language) is an exception. The applicant does not claim, for the purpose of this case, the creation, designing or writing of the Pascal software program or modification to it. It is the applicant's position however that they claim everything else done on a non-union basis on these two systems.

21. The applicant submits the work is covered by the provincial agreement whether it is found to be construction or non-construction. However the applicant's position is that it is ICI con­struction work which was performed by David Chow, technicians and engineering students from the University of Waterloo.

22. Daniel Chow, who developed the software, did not testify. The applicant asks the Board to draw some adverse inference that Daniel Chow and other Honeywell employees did not testify with respect to the deployment of the technicians also referred to as "techs".

23. The applicant contends the respondent unilaterally decided that certain final phases of its work including the final testing of equipment or devices or installation of certain devices or per­formance of certain checks were not electrical work and/or not construction work and therefore can be performed outside the provincial agreement by non-union techs. This case is not about repair or maintenance. This is the installation of a new system in a new building. The applicant does not agree with the respondent's position that the commissioning of the system is non-con­struction.

24. Counsel submits a significant number of the continuity checks were done by the techs. This is routine electricians work using multi-meters. The applicant claims the simulation, testing or checking out of equipment or process by means of a Portable Programmable Terminal (PPT) or lap top computer, where Pascal is neither required nor used. Routine trouble shooting or simulat­ing to see if equipment is operating properly, sequentially, is part and parcel of checking out the system. The applicant claims all work performed at the site by non-union persons except that work which involves or requires the user to know high level computer language such as Pascal. The applicant requests the Board declare the work that is the subject matter of this grievance, per­formed on a non-union basis, in connection with the environmental control hnd fire alarm systems at Markham-Stouffville Hospital, is covered by the principal agreement and that Honeywell has violated the agreement. The applicant requests a cease and desist order and asks the Board to remain seized on quantum of damages. The applicant further requests a declaration that the respondent is bound to the principal agreement for construction and non-construction work. For the grievances, Exhibit 4 and Exhibit 7, the applicant is requesting only declaratory relief.

25. The respondent submits there are three areas:

1. the applicability of the collective agreement - the extent to which the respondent is bound by the provincial agreement;

2. the nature of the work in dispute in this proceeding, work that was performed at Markham-Stouffville Hospital done by other than 353 members and whether the performance of that work constituted a breach of the collective agreement;

3. if you find there has been a breach what would be the appropriate remedy.

26. The respondent accepts it is bound by the provincial collective agreement for electrical construction work in the ICI sector. The issue becomes whether the work in dispute is covered by the agreement. It is not disputed that the work is neither residential nor service work. The respon­dent takes the position that it is not necessary for the Board to make a finding whether the respon­dent is bound to the agreement for other than ICI. Those issues do not arise in this case.

27. The respondent submits the work in question is "computer software work" and not "construction work". It is agreed that the provincial agreement applies to the physical installation of the two systems at the Markham-Stouffville Hospital and that work was performed by members of 353 pursuant to the collective agreement.

28. The issue in the respondent's view is whether the particular work in dispute is part of the physical installation of the system or whether it is part of the creation, testing and commissioning of the so ftware program. The respondent submits that the disputed work is part of the commis­sioning of the software and not work within the jurisdiction of the IBEW. The respondent submits there is no evidence before the Board with respect to residential or service work. It is not material to the issue before the Board.

29. Counsel for the respondent submits the applicant did not state what inference the Board should draw with respect to the Honeywell employees who did not testify. The onus is on the appli­cant to prove its case. There is no onus on the respondent to prove anything, no onus to prove what the techs did. The respondent submits with the exception of a dispute involving Mr. Heenan there is very little in dispute over who did what work. Mr. Heenan, a member of the union and the Foreman on the job was not called by the applicant and it is the respondent's position the Board should infer that Heenan' s evidence would have been against the interest of the applicant.

30. The respondent submits the work in dispute is the commissioning of the software which is not in the exclusive jurisdiction of the IBEW and is not construction, it is software work. It is part of the programming, creation and modification process not claimed by the IBEW. Is the work in dispute part of the installation of the hardware or physical devices or is it part of the checking out or modification of the software? The evidence establishes that none of the IBEW members are able to work with high level computer languages such as Pascal. Pascal was the language used at the Markham-Stouffville Hospital Project. The software was developed for this particular project including the computer centre that would co-ordinate the program.

31. The respondent takes the position that it is necessary to field test the program or soft­ware and make changes as needed however this can only be done by someone familiar with Pascal. If in the commissioning of the software a problem in the equipment is discovered that problem would be referred to members of Local 353 to correct.

32. It is the respondent's submission that all the work in dispute at the face of the panels or programmable controllers for both the Fire Alarm System and the Environment Management Sys­tem is part of the verification of the software program and as such is not electrical construction work.

33. The respondent argues that the specific tasks claimed by the IBEW do not constitute construction work but are part of the commissioning of the software. The insertion of the EPROMS is no different than inserting or removing a diskette from a personal computer. As the program is checked or modified the EPROMS have to be removed, checked and replaced. The plugging in of the Phoenix connectors is no different from plugging in any other electrical device or can be compared to connecting a personal computer to a printer. It is important to plug in the Phoenix connectors sequentially and verify that the software is working in the correct sequence.

34. Kennedy's evidence is that in his experience when the techs arrive to load and commis­sion the software that 353 members will have completed the continuity checks and the system is free of shorts, opens or grounds. The respondent submits the evidence shows that Vanderkolff did not know who completed the continuity checks on the fire alarm after he left the site. There is no evidence from Vanderkolff that other than 353 members performed continuity checks.

35. It is the respondent's position that the entire system has been completely checked out at the time of loading the software. If the software techs conduct another continuity check, whether this is the third or fourth check~ for his own piece of mind~ it does not in any way detract from Local 353's jurisdiction. The tech is not doing the work in place of the electrician but in addition to.

36. "Calibration of field sensors" is a misnomer. The calibration is performed by the com­puter software using Pascal. Some of the evidence referred to calibrating field sensors by using a screw driver, turning the screw depending on whether the reading was too low or too high. This is not the case here. It is a software task requiring the change in the software using Pascal.

37. The respondent submits the task involving the use of fuses in the panel as on/off switch by the techs is no different than turning a light on or off. This action of turning on the power at the panel is not electrical construction work.

38. The removing of the covers from the panels was necessary for the technician to attach his lap top, insert the EPROM and commission the software.

39. With respect to the continuity checks performed at the Motor Control Centre ("MCC") there is no evidence that any continuity checks were performed at the MCC by techs. The respon­dent submits Chow was showing the techs around the MCC.

40. The respondent submits the evidence is clear that all of the work at the face of the panel with portable computers involved the use of Pascal and requires a person knowledgeable in Pascal in order to check or alter the program.

41. With respect to the insertion of the circuit Boards in the fire alarm system this is equiva­lent to the EPROMS in the EMS. The continuity checks are the same as performed in the EMS. This a software task. It is the respondent's position that the construction work performed on the fire alarm system was done by members of 353. The verification of the software is not part of con­struction work. The use of magnets to trip the fire alarm is a requirement by the Fire Marshall and has nothing to do with the construction on installation of those devices.

42. Counsel for the respondent submits the evidence with respect to training of IBEW members is irrelevant as it does not include equipment used by Honeywell.

43. It is the respondent's submission that the work performed by Daniel Chow, the techs and the students, claimed by the applicant, is not part of the construction or installation of an elec­trical system. It is not electrical construction work, it is part of the creation, testing or modification of a software program. In the exercise and change of the software there may be incidental tasks such as opening doors of panels or turning panels on. This is analogous to IBM employees loading software into computers installed by electricians. The loading of software would include turning computers on and off. Each of the panels is a computer and are turned on by inserting the fuse or plugging in the phoenix connector. This is not electrical construction work within the jurisdiction of the IBEW.

44. The respondent submits the grievance should be dismissed because it has been estab­lished that none of the work has been performed in such a fashion that its performance breached the collective agreement.

45. In the alternative if the Board finds some of the work in dispute should have been per­formed by members of the IBEW there is the issue of appropriate remedy. The respondent sub­mits there is no evidence of IBEW members being available to do the work and the only evidence is from Bill Robinson that there was full employment in the Local at the relevant time. In the cir­cumstances the only remedy is a declaration that there was a breach.

Decision

46. The Board has weighed and assessed the testimony in the context of the documentary material filed with the Board. Both counsel concisely reviewed the evidence in support of their respective assertions and the relevant jurisprudence.

47. The work that gave rise to the dispute involves the commissioning of the Environmental Control and Fire Alarm Systems at the Markham-Stouffville Hospital. This work included the installation or removing and re-installing on site of EPROMS in the programmable controllers. The disputed work involved the plugging in or pushing in of Phoenix Connectors, continuity checks performed at the panel using Ohm Meters or Multi Meter to check for opens or grounds, the cali­bration of field sensors performed at the face of the controller, the removing of fuses, to switch the power on and off.

48. There was some evidence that techs had removed the covers of panels or controllers and performed continuity checks. These were high voltage panels and Ellis Don requested Honey­well cease "installing electrical components and checking for wiring continuity" (see Exhibit 24) until the Ellis Don Labour Relations Manager could investigate and rule on the IBEW request. One PC was installed by the techs in error. The respondent concedes it should have been done by the IBEW.

49. The IBEW claims that bargaining unit work was performed by non-union personnel in the following areas:

(1) EPROMS

(2) Phoenix Connectors

(3) Continuity Checks

(4) Calibration of Field Sensors

(5) Fuses (using them as off/on switches)

(6) Removing Covers from Control Panels

(7) Continuity Checks performed at MCC (Motor Control Centre) high voltage (Exhibit 24) 600 volts

(8) Installation of a Control Panel

(9) Programming (other than high level computer language i.e. Pascal)

(10) Fire Alarm System

50. The respondent characterized the work as having two parts. One part involves the designing, creating and commissioning, including modification of the computer software needed to run the two control systems. Each software is unique to each project developed by a software expert working from the requirements set out by the consulting engineer. The 2nd part is the actual wiring and installation of the various physical devices. These include the control panels which house the control devices, the remote sensors, to regulate the humidity and temperature, and the fire alarm sensors.

51. The commissioning of the systems involves the checking out of the physical components and the software. There is no disagreement that the installation or construction of the physical components is construction work covered by the ICI agreement. The dispute is whether the com­missioning of the software is construction work. If the answer is yes then its covered by the ICI provisions of the agreement. The respondent takes the position that the commissioning of the soft­ware is a separate process from the commissioning of the hardware, and is not covered by the col­lective agreement.

52. It is our view that commissioning of a system or facility is construction work. When a system or systems are turned over to the owner it is reasonable to expect that the systems are working and performing the tasks for which they have been designed. The hardware and the soft­ware are designed to function as a complete system. The commissioning of the systems is part of the construction phase. This is separate from the design or creation of the software which is not part of the construction phase. Any work performed during the commissioning phase of these two systems, regardless of how minor, or if it is the second or third continuity check, is work within the jurisdiction of the applicant.

53. The applicant has requested an all encompassing declaration for all non-construction and construction work. Having considered all of the submissions we are not prepared to give such a wide declaration. The grievance arose in the ICI sector and the Board declares that the work at issue (with the exception of work using Pascal) is covered by the ICI provisions of the agreement. For the purposes of this case the applicant does not claim any work functions performed during the commissioning phase using Pascal. We find there has been a violation of the ICI provisions of the collective agreement during the commissioning phase of the EMS and the Fire Alarm System at the Markham-Stouffville Hospital Project.

54. The Board directs the parties to meet to resolve the issue of damages. The Board will remain seized on quantum of damages should the parties be unable to agree.