International Union of Operating Engineers and its Local 793 v. Custom Concrete Northern Ltd., 1993 CanLII 7800

[1992] OLRB Rep. February 103

3132-91-G; 3829-91-G International Union of Operating Engineers and its Local 793, Applicant v. Custom Concrete Northern Ltd., Responding Party; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and its Local 230, Applicant v. Custom Concrete Northern Ltd., Responding Party

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members R. W. Pirrie and J. Kurchak.

APPEARANCES: N. L. Jesin, R. Kennedy, T. Kelly on behalf of the International Union of Operating Engineers; N. L. Jesin, M. Elliot and J. Burt on behalf of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and its Local 230; Carl Peterson, Ray Norris and Dan Bielaski on behalf of the responding party.

DECISION OF VICE-CHAIR, INGE M. STAMP AND BOARD MEMBER R. W. PIRRIE;

February 23, 1993

1. The name of the responding party is amended to read: "Custom Concrete Northern Ltd." For ease of reference we will refer to the responding party as the "company" or "Custom Concrete".

2. These are referrals of grievance to arbitration under section 126, construction industry. The applicants allege the responding party has violated the Mainline Pipeline Agreement. There are two applicants, the International Union of Operating Engineers and its Local 793 ("Operating Engineers") and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and its Local 230 ("Teamsters").

3. The applicants take the position that the work that is the subject of the grievances is covered by their collective agreements and in particular by the following Articles:

TEAMSTERS MAINLINE PIPELINE AGREEMENT

ARTICLE I

COVERAGE AND DEFINITIONS

"THIS AGREEMENT shall apply to and cover the construction, installation, treating, reconditioning, taking-up, re-bevelling, relaying, relocating, stockpiling, double-jointing or testing of all pipelines or any segments thereof transporting gas, oil, vapours, liquids, slurries, solids, or other transportable materials and underground and marine cables and all work incidental thereto or an integral part thereof coming within the jurisdiction of the Union, contracted for or performed by the Employer within Canada as such work is more fully described below illustrated in the accompanying charts. By mutual agreement this contract by be extended to cover other territory."

ARTICLE II

SCOPE OF WORK

"E. Where material and equipment is supplied by hauling to the site for any work defined in Article I such hauling shall be done in accordance with this Agreement.

F. This Agreement shall not be construed to include the employees or agents of third parties engaged in the supply or delivery of materials, parts, tools, or supplies to the work covered by this Agreement other than the employees of sub-contractors so engaged.

H. All hauling of pipe and stockpiling from the railhead, dockside, mill, owner's permanent yard or yards, or a coating mill, to be used for any work defined in Article I shall be performed under and in accordance with the terms and conditions of this Agreement and Schedule D attached hereto."

Schedule D sets out rates and conditions for the hauling of equipment, materials and pipe.

OPERATING ENGINEERS MAINLINE

PIPELINE AGREEMENT FOR CANADA

ARTICLE I

COVERAGE AND DEFINITIONS

'THIS AGREEMENT shall apply to and cover the construction, installation, treating, reconditioning, taking-up, re-bevelling, relaying, relocating, double-jointing, or testing, and stockpiling and stringing of pipe and pipe weights, of all pipelines or any segments thereof including marine pipelines, transporting gas, oil, vapours, liquids, slurries, solids, or other transportable materials and underground and marine cables and all work incidental thereto or an integral part thereof coming within the jurisdiction of the Union, contracted for or performed by the Employer within Canada as such work is more fully described below and illustrated in the accompanying charts. By mutual agreement this contract may be extended to cover other territory.

ARTICLE IV

JOB NOTIFICATION AND ENFORCEMENT

B. The Employer and the Local Union shall hold a Pre-job Conference before the start of the job, and the Local Union's representative at such conference shall be authorized by the Local Union to represent the Local Union for the entire area covered by the job within the territorial jurisdiction of the Local Union. The purpose of the Pre-job Conference shall be to define those matters outlined in the Pre-job Conference Report which is attached to this Agreement as Addendum B, but not including the changing of any of the conditions of this Agreement nor any interpretation of any of its clauses; it being agreed that any interpretation of this Agreement shall be made between the prime parties hereto so that proper application thereof may be made on the job. Whenever possible all Pre-job Conferences will be held jointly with the four pipeline crafts.

D. The Union will send a copy of this Agreement to each of its Local Unions having pipeline jurisdiction and the terms of this Agreement and none other shall be recognized by each Local Union and any Employer engaged in the same or similar work as defined in Article I hereof."

4. The work in dispute involves the manufacture and supply of concrete or ready-mix for concrete weights for a pipeline project going through the Cochrane area. Conweigh Incorporated purchased the concrete from Custom to be supplied to various sites. Conweigh manufactured the concrete weights.

5. Custom Concrete purchased land in the Town of Cochrane in March of 1989. The company entered into an agreement with the Corporation of the Town of Cochrane in June of 1989 to install water and sanitary sewer services at the cost of $73,000.00, $54,000.00 to be borne by the municipality and $18,000.00 by Custom Concrete. Plans for the batching plant had been in the works for some time before the pipeline work commenced in November of 1991. The building permit was issued in April 1991. The Public Utilities Commission of Cochrane hooked up Hydro services in May of 1991. The completed structure housed an office, batching plant and a washroom. By comparison the "portable batching plants" were units delivered to the various pipeline job sites. These portable units did not require building permits or involve the installation of permanent utilities. (See Exhibit 8 and 9)

6. The applicants contend this work is covered whether or not the batching plant is portable or permanent. The applicant further submits the plant at Cochrane was built for the sole purpose of supplying the pipeline project. It is the applicants' view the facility was put up in a few days and can be taken down just as quickly.

7. The applicant refers to Webster's dictionary defining "incidental" as a minor role, not essential. This gives a very broad scope as to what would be covered by a collective agreement i.e. the manufacture and delivery of concrete needed for the manufacture of the weights. The applicants point to the wage schedules which include concrete drivers, (Teamsters) and Group I operators which include loaders and batch plants (Operating Engineers).

8. The applicants submit there is no basis to distinguish between portable or permanent facilities in terms of the applicability of the collective agreement. Whether the work is done in a portable or permanent facility it is the same job function. The applicants request a declaration that both collective agreements have been violated with respect to the work and asks the Board to remain seized on any remedial issues.

9. The applicants submit there was an agreement between the parties to apply the collective agreement not only to the three portable sites but also to the Cochrane facility and that agreement should be enforced by the Board. The applicants submit this agreement is reflected in the four locations identified in the Operating Engineers Pre-job Conference Report. There is no pre-job report for the Teamsters. There were some discussions with the Teamsters representative about applying the agreement to all four locations. Counsel for the applicants submits Exhibit 5, the Operating Engineers Pre-job Conference Report, is binding and enforceable citing is E. S. Fox Limited, [1992] OLRB Rep. Jan. 29 paragraph 21. The applicant contends the language in Article IV B of the Operating Engineer's agreement supports his position that the Board can enforce this Pre-job Conference Report. Counsel cited Suss Woodcraft Ltd., [1983] OLRB Rep. Apr. 600 which directed the company to comply with an oral settlement.

10. The company submits the work in dispute is not covered by the collective agreement in that it is a permanent facility and/or is not construction work. Custom Concrete submits the applicants are attempting to expand their jurisdiction into an area with wide spread ramifications, namely into "supply". "Supply" is not construction. The company submits other supplies/deliveries are not covered by the Pipeline Agreement such as the delivery of aggregate, cement powder, trailers, fuel, dozers delivered on non-union floats, tools, vibrators. It is the responding party's position that permanent facilities are not covered by the agreement unlike portable units which go from site-to-site.

11. The company contends the Pipeline Agreement by law cannot cover non-construction. The supply of concrete to a site from a permanent manufacturing facility, just like steel, would be considered construction. A permanent manufacturing facility has never been held to be construction, otherwise the manufacture of asphalt, steel etc. integral to the construction of the Pipeline would be covered by the agreement. Counsel submits the Pipeline Contractors Association does not have the authority or jurisdiction to negotiate a collective agreement outside the Pipeline sector of the construction industry as per its accreditation certificate and the Board's decision of August 10, 1972. Paragraph 4 of that decision states in part:

The applicant, Pipe Line Contractors Association of Canada, is a corporation under Part II of the Canada Corporations Act. Letters Patent were issued by the Minister of Consumer and Corporate Affairs for the Government of Canada to the Pipe Line Contractors Association of Canada on the 9th day of April 1968. On April 26, 1971, the original Letters Patent were amended by Supplementary Letters Patent. As a result of the Supplementary Letters Patent the objects of the applicant corporation included the following:

(i) to regulate the relations between employers and employees in the pipeline construction industry;

(ii) to become a representative association and/or a registered or accredited employers' organization where such may be provided for by law and to conduct collective bargaining and to administer collective bargaining agreements on behalf of employers of employees in the pipeline construction industry.

Counsel for the company submits there is no reference to non-construction work in the Mainline Pipeline Agreement or the Voluntary Recognition Agreements. The responding party cited a number of cases which support its position that the work in dispute is not construction. The company submits Exhibit 5 is not a collective agreement and is not enforceable. Article IV of the Operating Engineers Agreement states it cannot change or interpret any clause of the collective agreement. The company submits case law on grievance settlements is not relevant.

Decision

12. The issue is whether the manufacture and supply of concrete from a permanent facility is work covered by the Teamsters' and Operating Engineers' Pipeline Agreement. There is no issue with respect to portable units which are used on site and are covered by the agreements.

13. The Board has reviewed the evidence, the Exhibits and the cases cited. The facility at Cochrane differed substantially from the portables on site. It is a structure which required a building permit and included the installation of permanent utilities on land purchased by the company. Plans had been made for this facility some time before the pipeline project commenced. The decision to build this facility was in anticipation of business opportunities, including the pipeline. During the relevant time the bulk of its product was supplied to the pipeline with the remaining product being delivered to other customers.

14. The Board has dealt with this issue in a number of cases. See, for example, Maitland Redi-Mix Concrete Products Limited, [1980] OLRB Rep. Dec. 175 1,the Board stated in part:

15. The applicant is engaged in the delivery of ready-mix concrete to the site of construction. The Board has determined on many occasions that an employer which merely delivers material to a site of construction is not an employer within the meaning of section 106(c) of the Act. See, for example, the Ethier Sand & Gravel Limited case, [1979] OLRB Rep. Oct. 962 and the Canadian Road Asphalts Limited, case, [1980] OLRB Rep. March, 299. On the facts before it, the Board finds that the applicant is not an employer within the meaning of section 106(c) of the Act.

In Ethier Sand & Gravel Limited, supra, at paragraph 9 the Board stated in part:

9. The respondent performs essentially the work of a supplier of materials to employers who apparently operate businesses in the construction industry. As a secondary feature, the respondent constructs roads from its own materials. There is no doubt that the construction of roads is included in the definition of "construction industry" in section 1(l)(f) of The Labour Relations Act. The delivery of materials to employers who are engaged in performing work at the site of the construction of roads is not the operation of a business engaged in construction of "works" at the site thereof and does not fall within the definition of "construction industry" within the meaning of section 1(1)(f). See the Cedarhurst Paving Co. Limited case, [1964] OLRB Rep. Dec. 442.

Canadian Road Asphalts Limited, [1980] OLRB Rep. Mar. 299 in paragraph 17 states in part:

17. We are of the view that the production of asphalt does not fall within any of the activities included in the definition of the construction industry and that accordingly employees engaged in asphalt production at the plant are not employed in construction activity. ... However, we are of the view that this task is properly classified simply as the delivery of materials to be used in construction, and not itself a construction activity. See: Ethier Sand & Gravel Limited, [1979] OLRB Rep. Oct. 962.

18. We do not read Article I, in both agreements, to contemplate the inclusion of suppliers because their product may be "incidental" to the construction of the Pipeline. The material supplied was used in the manufacture of concrete weights which work is not in dispute. It does not make labour relations sense to interpret the words "incidental thereto" (in Article I) to include suppliers of materials used in the pipeline construction or any other construction projects. This could include a wide variety of suppliers and this cannot be the meaning of Article I. For example it would be a strange result to say that the manufacturer and supplier of the pipes, such as Dofasco or Stelco, is bound by the Mainline Pipeline Agreement. The facts in Majestic Wiley Contractors Limited, [1979] OLRB Rep. March 229 can be distinguished from the facts before us.

19. The Pre-job Conference Report is neither a collective agreement or a "settlement" and is simply a document reflecting what was discussed at the pre-job meeting. It is not enforceable as a collective agreement or minutes of settlement. The discussions that took place with respect to how the work would be performed is not an oral agreement in the context of settlement discussions in a grievance as contemplated in Suss Woodcraft Ltd., supra.

20. For the foregoing reasons we find that the manufacture and supply of concrete from a permanent facility to a contractor manufacturing concrete weights for the pipeline project is not work covered by the Mainline Pipeline Agreement. These grievances are dismissed.

DECISION OF BOARD MEMBER J. KURCHAK: February 23, 1993

1. I dissent in part.

2. I agree with the majority decision in its conclusion that the batching plant in question is a permanent structure.

3. I would agree that the plant in Cochrane would not be considered a construction site as defined by previous Board decisions.

4. However, paragraph E of Article II of the Teamsters' Pipeline Agreement alters the relationship with regard to this project. I read it as a sub-contracting clause, obligating the employer to use the Teamsters in the delivery of concrete to the construction site.

5. Therefore, I would say that this work is tied in as part of the Pipeline Agreement, and would, with respect rule in favour of the Teamsters in their grievance with the employers with regard to this part of the operation.