[1993] OLRB Rep. March 227
3238-92-JD Ontario Sheet Metal Workers' & Roofers' Conference; Sheet Metal Workers' International Association, Local 473, Applicants V. Ontario Hydro; Electrical Power Systems Construction Association; Labourers' International Union of North America, Local 1059, Responding Parties
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: J. Raso, Gord Stewart, and Ron Pollock for the applicant; M. Patrick Moran and M. Shecter for EPSCA; M. Patrick Moran and Jack Davidson for Ontario Hydro; John Moszynski, Jim McKinnon, Carolyn Hart, Bill Casemore, and Rick Rock for Labourers', Local 1059.
DECISION OF THE BOARD; March 8, 1993
1. On March 1, 1993, the Board held a consultation in this application concerning a complaint about an assignment of work.
2. Upon considering the written representations and other materials filed by the parties, and their oral representations during the consultation, the Board ruled, orally, that:
(a) there was nothing with respect to which the Board either found it necessary to or wished to hear evidence;
(b) that the Board was satisfied that the application could be properly disposed of on the basis of the materials and representations before the Board, and that it was appropriate for the Board to do so; and
(c) that this complaint should be allowed.
The Board therefore:
(a) declared that the work in dispute; namely, the work in connection with the removal for scrap of exterior metal siding from the roof of the Bruce Nuclear Power Developments Steambridge - Reactor and Turbine Buildings, should have been assigned to members of the applicant Ontario Sheet Metal Workers' & Roofers' Conference and its affiliate Sheet Metal Workers' International Association, Local 473; and
(b) ordered that all such future work in Board Area #3 assigned by Ontario Hydro or the Electrical Power Systems Construction Association be assigned to members of the Ontario Sheet Metal Workers' & Roofers' Conference and Sheet Metal Workers' International Association, Local 473.
The Board's declaration and order must be read subject to the reasons for the Board's decision which follow.
3. Though there were some minor differences in the wording used by the parties to describe the work in dispute herein, there was substantial agreement between them in that respect; namely, that it was the work in connection with the removal for scrap of exterior sheet metal siding from the roof of the Bruce Nuclear Power Developments Steambridge - Reactor and Turbine Buildings.
4. It was common ground that, in 1992, it was determined that the Steambridge running between the Reactor and Turbine Buildings at the Bruce Nuclear Power Development was unsafe and should be removed. The work program in that respect was to proceed piecemeal as finances permitted and included the removal of sheet metal roofing for scrap (that is, the work in dispute).
5. A mark-up meeting was held with respect to work which included the work in dispute herein on July 24, 1992. At that meeting Ontario Hydro ("Hydro") announced its proposed assignment for each of the jobs being marked up. The Sheet Metal Workers' International Association, Local 473 claimed the work in dispute for its members. However, Hydro assigned it to members of the Labourers' International Union of North America, Local 1059 (the "Labourers"). Hydro subsequently confirmed that assignment by letter dated August 10, 1992 and members of the Labourers in fact performed the work in dispute.
6. In this application, the Ontario Sheet Metal Workers' & Roofers' Conference and Sheet Metal Workers' International Association, Local 473 (the "Sheet Metal Workers") claimed the work in dispute on the basis that their members installed the sheet metal roofing in the first place. They relied upon what they asserted was a long-standing Hydro policy in that respect and on what they asserted was in fact Hydro's practice.
7. Hydro acknowledged that it had a policy pursuant to which members of the installing trade are assigned to remove material which is to be replaced or which is to be salvaged or reused.
However, Hydro asserted that where, as in this case, the material being removed was going directly to scrap, the removal work is properly assigned to members of the Labourers' International Union of North America and in this case of its Local 1059. Although Hydro initially argued that the specialty demolition skills possessed by members of the Labourers favoured the assignment to them, it subsequently acknowledged that any such specialty skills were not necessary to perform the work in dispute herein.
8. The Labourers adopted Hydro's submissions and further submitted that the structure in question was really free-standing scrap which was in effect the first drop point, that it is work which its members have historically done~ and that the nature of the work was such that it was neither necessary nor appropriate for members of the Sheet Metal Workers, as the installing trade, to perform it.
9. Neither Hydro nor the Labourers was able to point to any examples of work in connection with the removal of exterior sheet metal siding in Board Area #3 which had been made the subject of the mark-up meeting and been assigned to members of the Labourers. They did point to a number of examples of "field assignments" of such work to members of the Labourers. However, because of the manner in which field assignments are made, the Board generally gives such assignments much less weight as evidence of past practice than it does to assignments made as a result of a mark-up process in which the jurisdictional claims of interested trade unions can be made and assessed.
10. On the other hand, the Sheet Metal Workers were able to point to Hydro's own written policy with respect to the assignment of "removal" work. This policy appears in various forms, although its thrust is consistent. The following example, taken from documents with respect to a Hydro mark-up meeting held on January 17, 1991 is as clear a statement of that policy as any;
the trade group who installed the equipment/system will be assigned the removal activity the trade assigned the removal will move the equipment or system to the first drop point.
if the equipment/material is considered “scrap" the labours will be assigned the removal from the first drop point to the loading area. (Subject to trade work assignments and agreements)
[sic]
The Sheet Metal Workers were also able to provide a number of examples of assignments of work like the work in dispute herein by Hydro to their members, and also examples of applications of the aforesaid Hydro policy to the removal of material installed by other trades.
11. The Board was satisfied that Hydro's express policy is to assign removal work of scrap material to the installing trade as far as the first drop point, and that this policy favoured the Sheet Metal Workers claim to the work in dispute. Further, Hydro's own practice in the Board Area #3 has been consistent with that policy insofar as the assignment of work through the mark-up process is concerned. Because assignments made through a mark-up process are greater weight than field assignments, the factor of area practice favoured the Sheet Metal Workers as well.
12. In our view, the criterion of skills, training and ability favoured neither the Sheet Metal Workers nor the Labourers. The work in dispute required neither the specialized skills of a sheet metal worker nor the specialized demolition skills of a labourer. Either of them can do it.
13. Nor did the criterion of the economy and efficiency favour either trade unions' claim. It may have been less expensive for Hydro to assign the work to members of the Labourers, but trade jurisdiction cannot be bought and sold.
14. Nor did the Board accept the assertion of Hydro and the Labourers that the structure in question here was in effect standing scrap that itself constituted the first drop point.
15. In the result, the Board was satisfied that the Sheet Metal Workers had made out their claim to the work in dispute and that the removal for scrap of the exterior sheet metal siding from the roof of the Bruce Nuclear Power Developments Steambridge - Reactor and Turbine Buildings in issue herein should have been assigned to members of the Sheet Metal Workers to the first drop point. Pursuant to section 93(1.2) of the Act, the Board found it appropriate to make a final order in that respect without further inquiry into the matter.
16. Further, pursuant to section 93(2) of the Act, the Board found it appropriate to order that all such future work assignments in Board Area #3 by Hydro or the Electrical Power Systems Construction Association be made to members of the Sheet Metal Workers.
17. The Board therefore ruled aforesaid (see paragraph 2, above).
18. We wish to venture one further brief comment. The jurisdictional dispute process in effect since January 1, 1993 contemplates a speedy disposition of applications made to the Board in that respect. The process requires that parties to such a proceeding file extensive Briefs of submissions and documents. In some respects, the process encourages parties to err on the side of caution when they prepare their Briefs in terms of what they include in them. While there is nothing particularly wrong with that, we respectfully suggest that the "kitchen sink" approach to such Briefs is not particularly helpful. In this case, for example, the parties filed hundreds of pages of material relating to the "practice" upon which they wished to rely. Because this was a "removal for scrap" assignment, we found the "removal and replace" and "installation" assignments materials of no real assistance. In our view, the parties could properly have focused on the practice relating specifically to the work in dispute and the application of the Hydro policy with respect to the assignment of such work. The parties could probably have saved themselves much time and money by taking a more focused approach. Further, a party does not strengthen its case by including materials which do not in fact support it.