[1993] OLRB Rep. December 1343
3814-92-JD Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local Union 1036, Applicants v. Nicholls Radtke Limited, United Brotherhood of Carpenters and Joiners of America, Local 446, Responding Parties
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: L. A. Richmond and W. Suppa for Labourers, Local 1036; Denis Flynn for Nicholls-Radtke Limited and David McKee and Gil Scott for Carpenters, Local 446.
DECISION OF THE BOARD; December 10, 1993
This is a complaint concerning work assignment filed pursuant to the provisions of section 93 of the Labour Relations Act. This complaint arose out of work performed by Nicholls Radtke Limited ("the employer" or "the company") at the Lake Superior Power Co-generation project in Sault Ste. Marie during November and December of 1992 and January and February of 1993. The work in dispute was assigned by the employer to members of the Labourers International Union of North America, Local 1036 ("the Labourers"). This assignment of work resulted in a grievance by the United Brotherhood of Carpenters and Joiners of America, Local 446 ("the Carpenters"), which was adjourned on the agreement of the parties in order that the jurisdiction dispute be determined.
The Board held a consultation with the parties on October 7 and November 25, 1993, where this panel heard the representations of the parties with respect to the dispute and with respect to the documents and materials filed by the parties in this matter.
The work in dispute consists of the releasing, removal and dismantling of formwork built in connection with power plant foundation walls, heat recovery steam generator foundation piers, various machine base foundations, turbine bases, and other piers. It includes the initial releasing and removal of the formwork from the concrete face, and the removal of strongbacks and whalers necessary for the dismantling and removal of the formwork from the work area. Because the work in dispute occurred over a number of days, and for varying lengths of time, there is some factual dispute about the details of the work on some of these days. We do not need to determine these factual disputes for the purposes of our findings in this jurisdiction dispute. The nature of the work in dispute was clear enough that the parties had no trouble taking positions and making representations in support of their positions.
It is fair to say that the dispute chrystallized around the issue of which trade should be entitled to perform the stripping of formwork which was not to be re-used intact or essentially intact for further forming on the same project, but where the forming materials will be re-used to build further formwork. With respect to formwork, such as panel forming, which is to be re-used in essentially the same configuration, the parties do not dispute the Carpenters' entitlement to the stripping of this formwork (although at one point, the Labourers also claimed jurisdiction over the removal of the strongbacks and whalers once the forming was taken off the concrete). With respect to formwork which is not to be re-used essentially intact for the same project, the Labourers claim entitlement to all the work required for its stripping, and the Carpenters claim entitlement to all such work where the materials are to be re-used for formwork, whether or not on this project.
There is no dispute that after the formwork has been released and dismantled, the Labourers have jurisdiction over its cleaning, oiling and carrying.
It appears that on this project, where the formwork in dispute was not re-used essentially intact, most of the materials have nevertheless been cleaned and stored, since it consists of special plywood and lumber produced for forming purposes.
The Labourers rely heavily on a trade agreement signed in 1949 between international representatives of the two unions. In 1964, this agreement was adopted in writing by local representatives of the Carpenters and Labourers, for the District of Algoma.
We do not find this trade agreement to be helpful in deciding this dispute. In Fraser-Brace Engineering Company, Limited, [1969] OLRB Rep. Jan. 1087 the Board heard extensive evidence with respect to this agreement, concluding that,
.... [d]espite the volume of the testimony, however, little light was shed on the extent of the Carpenters jurisdiction in the stripping of forms contemplated by the October 3rd, 1949 memorandum on concrete forms. The testimony primarily served to underscore the obtuseness of the language of the document on its face. [para.20]
- The Board also stated that "if there ever was a genuine common understanding as to the division of jurisdiction envisaged by the 1949 memorandum between the Labourers and Carpenters that understanding ceased to exist in less than two years." Finally, the Board stated:
……In summary, paragraph I of the October 3, 1949 memorandum on concrete forms does not draw a clearly defined line of demarcation as to the jurisdiction of the Labourers and Carpenters unions over the stripping of forms. Rather, the document bears ambiguities on its face which have been the source of ever increasing jurisdictional discord between the two unions almost since its inception. [para.29]
In light of the comments of the Board above, we are not inclined to rely on this agreement unless the evidence clearly establishes, with respect to this local area, a common understanding between the trades as to the meaning of the agreement. We find such evidence lacking in the case before us.
To the extent there is evidence of the employer's prior preferences with respect to similar work, it favours the Carpenters. In May of 1989, the company assigned similar work to members of the Carpenters on a project at Algoma Steel. This assignment became the subject of a jurisdiction dispute which was eventually withdrawn, without prejudice. Since the withdrawal was made without prejudice, this panel does not make any findings against any party because of the withdrawal. However, there is no reason why the work in dispute cannot be relied upon as an example of employer preference. Further, all parties acknowledge that similar work was assigned by the employer on this very project to members of the Carpenters. As well, although both unions claimed to have support for their positions from the original written assignments on this project (and both trades claim they have no disagreement with that original assignment), the language used by the employer favours the Carpenters, insofar as the assignments are based on reusable and non re-usable materials, as opposed to formwork.
Turning to the area practice, we find some lack of detail in the documents submitted. We rely only on what is specific enough that it refers to the work in dispute, or from which we can draw reasonable inferences. Taking this into account, it appears that contractors in the area have performed the work predominantly in one of two ways: with a crew of Carpenters, or with a crew of Carpenters with Labourers assisting in the dismantling.
We do not find the factors of collective bargaining relationships, skill and ability, and economy and efficiency to favour either trade clearly.
In the circumstances of this case, having regard in particular to the past practice of this employer, the wording of the original written assignment and the practice of other contractors in the area, we find that the assignment of the work in dispute on specified dates to members of the Labourers was wrong. Although it appears that in other circumstances the two trades have been able to work together on a composite crew on the dismantling of the formwork once it has been removed from the concrete, we do not think that ordering this option will promote predictability and industrial peace in the circumstances of this case. Given the obvious history of problems between the two trades on this site in arriving at a line of demarcation with respect to the stripping of formwork, we find it necessary to draw such a line ourselves. Therefore, with respect to the stripping of formwork where either the formwork is to be re-used essentially intact or the materials are intended to be re-used for forming purposes, we find that the Carpenters ought to be assigned the releasing and removal of hardware, the removal of the formwork from the concrete face, and the dismantling of the formwork for purposes of transporting away from the work area.