[1993] OLRB REP. OCTOBER 963
0952-93-JD The Labourers' International Union of North America, Ontario Provincial District Council, and the Labourers' International Union of North America, Local 625, Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 494 and Delsan Demolition Limited, Responding Parties
BEFORE: Robert Herman, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: John Moszynski, Tony Morga and Caroline Hart for the applicants; David McKee and Jim Caron for Carpenters Local 494; C. Osborne and Pina Farraro for Delsan Demolition.
DECISION OF THE BOARD; October 27, 1993
1This is a jurisdictional complaint, filed in June, 1993, pursuant to the recently amended section 93 of the Labour Relations Act ("the Act"). The Board held a consultation with the parties.
2This case appears to be the first occasion in which the Board is called upon to make a decision in a jurisdictional dispute that arises in the context of a demolition project or demolition site, where the contest is between the Labourers' and another construction union. It also appears to be the first matter in which the Board is called upon to comment upon the Labourers' demolition designation.
3The work in dispute involves the erection of wooden hoarding with canopy around the site of the Steinberg building at the corner of Goyeau Street and Chatham Street in Windsor, Ontario. The hoarding was to remain throughout both the demolition of the existing Steinberg building and the construction of a new building on the same site.
4The employer, Delsan Demolition Limited, is a specialty demolition contractor, whose primary work has always been the tearing down or demolishing of various buildings or structures. In June, 1992, the Ministry of Government Services called for bids for the demolition of the Steinberg building. The job specifications for the demolition work included the erection of the hoarding and walkway surrounding the site. All of the bidders were speciality demolition contractors, and Delsan was awarded the contract in August, 1992.
5Both unions have a bargaining relationship with Delsan. For many years, the group of specialty demolition contractors in the province, the Metropolitan Toronto Demolition Contractors Inc. (or Association), of which Delsan is a member, and the Labourers' International Union of North America, Ontario Provincial District Council have been bound to a Provincial Agreement (the "Demolition Agreement"), covering demolition work in the province. At all material times, Delsan has been bound by the applicable Demolition Agreement. The terms of that agreement specifically cover "the erection and removal of hoarding".
6The Carpenters have only recently acquired bargaining rights for Delsan. They filed an application for certification relating to a new construction (as opposed to demolition) project of Delsan's. In a decision dated April 15, 1991, the Board certified the Carpenters for "all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry, and all other sectors" in Board Area No. 8. By operation of law (see, for example, sections 146(1), and 147(4) of the Act), Delsan became immediately bound to the Carpenters Provincial Agreement. The terms of that agreement also cover work of the nature of the work in dispute here.
7After Delsan assigned the work in dispute to the Labourers', the Carpenters filed a grievance and in turn an application before the Board pursuant to section 126 of the Act, relying upon their rights set out in their Provincial Agreement. Subsequently, the parties agreed to defer consideration of the section 126 application, pending the filing and resolution of the instant jurisdictional dispute.
8Some background history is helpful. As noted, the demolition contractors and the Labourers' have been parties to an agreement governing work on demolition projects throughout the province. This arrangement dates from the 1960's, and generally speaking, the Labourers' have represented "all employee" bargaining units of workers employed by demolition contractors to perform demolition work. Under these agreements, members of the Labourers' have acted as a general workforce for the demolition contractors, in many cases performing the work that other trades customarily would perform in other (non-demolition) types of construction. "Demolition" has historically represented a different type of work and workforce, and the arrangements between the players have been different than in other parts of the construction industry, including arrangements about work assignments. It cannot be said, however, that the other trades have knowingly or willingly acquiesced in these special arrangements.
9It is also necessary to briefly touch upon the relevant legislation. In section 1(1) of the Act, "construction industry" is defined as meaning "the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures etc.". "Demolition" is therefore construction industry work.
10The construction industry is divided into sectors, but the definition of "sector" in section 119 of the Act does not include reference to the "demolition" sector. It is not a distinct "sector". Rather, it is clear that "demolition" is part of another sector described in section 119, in this case the industrial, commercial, and institutional ("ICI") sector of the industry. This sector and the designation scheme were recently described by the Board in Metropolitan Toronto Demolition Contractors' Association [1993] OLRB Rep. July 612:
We therefore commence with some general observations concerning the nature and purpose of the province-wide bargaining provisions and the designation orders.
The legislative purpose of the province-wide bargaining provisions of the Act (which were first added to the Act by the Labour Relations Amendments Act, [1977] SO. c. 31 ("Bill 22")) was "first to recognize existing bargaining rights and patterns in the ICI sector and then to structure around them a province-wide bargaining regime, the objective of which was to stabilize the collective bargaining process in this significant sector of the construction industry." (See Manacon Construction Limited, [1983] OLRB Rep. March 407 at para. 30).
In Lumber and Sawmill Workers Union, Local 2693, [1987] OLRB Rep. Dec. 1556 the Board referred to the province-wide bargaining scheme in the following manner:
- Provincial bargaining in the IC! sector is structured essentially on a multi-employer single trade basis. There are, however, a number of departures from the principle of single-trade bargaining. These exceptions reflect the fact that at the time provincial bargaining was introduced, certain construction trade unions represented ICI employees outside of their "normal" trade or classification. For example, the Labourers Union represented units of plasterers as well as units of employees engaged in restoration and waterproofing work, often referred to as "steeplejacks", both of which groups had traditionally been represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. Because of this, the designation for the labourers employee bargaining agency covers not only labourers, but the other two classifications as well. Similarly, in recognition of the fact that the International Union of Bricklayers and Allied Craftsmen has traditionally represented plasterers in certain parts of the province, the bricklayers employee bargaining agency designation refers to plasterers as well as to bricklayers and stonemasons.
(emphasis added)
Generally however the thrust of the current designations is to encourage single trade bargaining by the designated employer and employee bargaining agencies (EBA's). As a result of this emphasis on single trade bargaining the designations upon which the scheme of province-wide bargaining is founded are generally based on a "craft" rather than a task or work function basis. In its decisions the Board also strives to promote the concept of single trade bargaining by the designated EBA's. Thus, in the ICI sector, the Board dismisses applications for certification by building trades "across craft lines". That is to say, union's bound by the scheme of province-wide bargaining cannot represent classifications of employees not referred to in their designation orders (see Manacon Construction Limited, supra, application for reconsideration dismissed, [1983] OLRB Rep. July 1104).
Again in Lumber and Sawmill Workers Union, Local 2693, supra, the Board expressed this concept as follows:
- Section 146(2) prohibits an affiliated bargaining agent from entering into a collective agreement that is not a provincial agreement. The wording of this section has led the Board to conclude that a local of a building trades union which meets the definition of an affiliated bargaining agent cannot enter into a valid collective agreement for a trade or classification not referred to in the relevant employee bargaining agency designation. Following from this conclusion, the Board has on a number of occasions dismissed applications for certification by building trades unions "across craft lines". Accordingly, bargaining rights for an unrepresented unit of employees in the ICI sector can only be obtained by the building trades union designated to represent the trade or classification involved, (i.e., bricklayers can only be represented by the Bricklayers Union), or by a non-building trades union outside the scheme of provincial bargaining.
We find it also appropriate to note that there is a distinct difference between the representational rights which flow from the certification (or voluntary recognition) of a trade union within the parameters of the province-wide scheme of bargaining and the designation orders, and the work jurisdiction claims of a trade union (see, for example, the comments of the Board In The Matter Of Certain Designations And Certain Employee And Employer Bargaining Agencies [1980] OLRB Rep. Apr. 497; Superior Plumbing and Heating Company Limited, [1986] OLRB Rep. Nov. 1589). We agree with the submissions of the Insulators that the work jurisdiction claims and the representational rights of a particular trade union are not co-extensive and should not be treated as synonymous. Moreover, we note that the Act contains detailed provisions designed to resolve issues arising out of competing jurisdictional work claims (see section 93 of the Act). It is our view that it is inappropriate to resolve or attempt to resolve competing work jurisdiction claims in the context of these proceedings in the face of these specific legislative provisions.
With respect to the difference between representational rights and work jurisdiction claims we note that the designation orders summarize a trade or a craft in a very general way without particularizing the jurisdictional claims of that trade or craft. To take an example unrelated to this matter, the United Association of Journeymen and Apprentices of the Plumbing and Pipe-fitting Industry of the United States and Canada and the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers (amongst others) both assert work jurisdiction claims over welding and welders. The designation orders of the Minister which relate to these two craft unions, and the certificates as bargaining agents granted by the Board to these two unions, do not however refer explicitly to welders. Rather, in claiming welding work each of these two craft unions rely upon assertions that the performance of the skill or work in question is part of their designated craft. It is important to keep this distinction between representational rights and claims to work jurisdiction in mind especially when addressing the issues as to whether asbestos removers are a trade or craft, or whether asbestos removal is a discrete segment of the construction industry.
11Thus the ICI sector is governed by a "designation" system. In Kraft Construction (1978) Ltd. [1989] OLRB Rep. Feb. 169, the Board wrote:
Section 144 covers all applications for certification in the construction industry (see Clarence H. Graham Ltd., [19811 OLRB Rep. Sept. 1195; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd., [1983] OLRB Rep. March 407 and July 1104). Under the province-wide bargaining provisions of the Act, some trade unions are designated to represent certain specific trades or crafts in bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry. A trade union represented by a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recognition agreements under section 144(4). Trade unions which are not represented by a designated employee bargaining agency, and which are therefore not covered by sections 144(1) through (4) of the Act, such as the Christian Labour Association of Canada, can apply for certification or enter into voluntary recognition agreements in the construction industry under section 144(5).
The designation orders (which are issued pursuant to section 139(1) describe the provincial units of employees contemplated by the province-wide collective bargaining scheme established by the Act for the ICI sector of the construction industry in terms of crafts or trades, and designate, for each such bargaining unit, an employer and an employee bargaining agency. In effect, such order designates the trade(s) or craft(s) which "belongs" to each employee bargaining agency and its affiliated bargaining agents. Employee bargaining agencies, and their affiliated bargaining agents, can only represent, in the province-wide ICI collective bargaining scheme, those employees who are in a craft or trade they have been designated to represent (see Ninco Construction Ltd., supra, Manacon Construction, supra, Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Witmer Plumbing and Heating Ltd., [1987] OLRB Rep. Oct. 1228). In fact, the structure of the Act requires an employee bargaining agency to represent all parts of the trade(s) or craft(s) it has been designated to represent in ICI bargaining. Consequently, in applications for certification under section 144(1), the Board, although not necessarily bound to use the precise words of the designation order, cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. To accommodate this designation system, and recognizing that trade union representation of the construction industry has historically been along trade or craft lines, the Board's general practice, in applications under section 144(1), is to describe bargaining units in terms of the relevant trade in using the words of the relevant designation order. Further, the Board has held that where a trade union seeks to be certified for a bargaining unit limited to a particular craft or trade (as an affiliated bargaining agent must do in an application which relates to the ICI sector of the construction industry), all employees pertaining to that trade or craft who are at work on the date of application must be included in the bargaining unit for certification purposes (see, for example, Dufresne Piling Co., (1967) Ltd., [1984] OLRB Rep. July 924).
12The concept of a "designation" under the Act is limited to the ICI sector: all designations are issued (pursuant to section 141), and can only be issued, for the ICI sector. When the ICI province-wide scheme was first implemented in 1978, the Minister issued a series of designations, with respect to Employer Bargaining Agents, Employee Bargaining Agents, and Affiliated Bargaining Agents. The initial Labourers' designation (for our purposes here) specified that the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council were (together) the Employee Bargaining Agency for representing in bargaining all "construction labourers, including masons' or bricklayers' tenders, and employees engaged in cement finishing, waterproofing or restoration work ...". Although the designation afforded special treatment to concrete forming construction and the agreement between certain Labourers' Locals and the Ontario Form Work Association, no mention was made of the Demolition Agreement or the long-standing bargaining relationship between the Labourers' and the Metropolitan Toronto House Wreckers Association (predecessor to the Metropolitan Toronto Demolition Contractors Association).
13In a new designation issued September 30, 1983, the Minister did recognize (amongst other matters) that ICI demolition was special, amending the prior Labourers' ICI designation to exclude from its application this particular bargaining relationship.
14However, shortly thereafter, around June, 1984, correspondence was directed to the Minister by both the Metropolitan Toronto House Wreckers Association and the Labourers', requesting a further amendment to the designations "in regard to that relationship particularly described in terms of the Collective Agreement ...". There followed a significant period of exchange of correspondence with the Minister's office, both from the parties and from other trades. The Labourers' and the Metropolitan Toronto Demolition Contractors (the new name for the association of demolition contractors) requested a revised designation naming new E.B.A.'s and enshrining the current practice. They noted that, almost without exception, demolition contractors were bound to a demolition agreement with the Labourers' under which the parties had agreed to an "all employee" bargaining unit. Under the agreement, the Labourers' were entitled to perform the work of all other trades on demolition projects. This had been the long- standing practice in the industry, they asserted. The evidence before us is limited in this respect, but the Carpenters' union (at least) opposed a revised designation, and argued that any new designation ought not to cover "all employees".
15In the result, the Minister issued a new designation on January 23, 1986, which designated the Labourers' International and the Labourers' Ontario Provincial District Council as the employee bargaining agency "to represent in bargaining construction labourers engaged in the wrecking, demolition, dismantling or salvage of buildings and structures in the industrial, commercial and institutional sector of the construction industry ..." (emphasis added). The Labourers' were not designated to represent employees other than "construction labourers".
16The current demolition designation has significance for jurisdictional disputes. Although demolition work can be (as it is here) construction within the ICI sector, it has been afforded selective treatment under the designation system. The Minister, through the power to designate bargaining agents in the ICI and to describe provincial units (s. 141), has recognized that demolition is a specialized type or part of ICI sector construction work. The historical reality is that there has been a special bargaining relationship between the Labourers' and the Metropolitan Toronto Demolition Contractors with respect to demolition work, and the legal framework has now acknowledged that fact.
17How does this distinct designation impact on work assignment disputes? Until now, the Board has not considered the parameters and significance of practice evidence in demolition project jurisdictional disputes. In other ICI contexts, the Board has in recent years increasingly come to rely on the relevant employer and area practice in determining the correct assignment. The Board has also increasingly come to place significant weight only upon practice within the Board Area in question (see, for example, Commonwealth Construction Company, [1991] OLRB Rep. June 742). For ICI projects then, the Board has focused primarily on ICI past practice within the project's Board Area. Further, the Board has relied upon evidence of all types of ICI work, regardless of the type of ICI project. Thus, the Board has rejected the argument that the food or automotive industries represented a meaningful subset of ICI practice within a Board Area (Comstock Canada, [1993] OLRB Rep. Aug., 740).
18In our view, the Board's approach must be different when disputes arise over work performed on demolition projects. For the reasons recited above, demolition is an acknowledged, distinctive part of ICI construction. It follows that practice evidence related to demolition projects or sites will be of particular relevance. This relevant practice evidence will be, as it is here, the evidence of employer or area practice on demolition projects only. We see nothing in the current designation or construction industry practice which suggests that this demolition practice ought to be restricted to projects engaged in by speciality or demolition contractors.
19Consistent with the Board's developing approach to disputes arising in the ICI sector, the relevant past practice will ordinarily be limited to practice that arose in the particular Board Area in question. To look at area practice that occurred outside the Board Area would be counterproductive. Where the trades have largely resolved a work assignment problem within a Board Area, the Board will not lightly disrupt their arrangement. To rely upon practice in other Board Areas in these circumstances will only lead to increased disputes and litigation, and less certainty and predictability for contractors making assignments. Both contractors with a history in the Board Area and those newly arrived are better served by a jurisprudential approach that gives pre-eminence to the local allocation system. Similarly, protocol focused upon local practice better serves the local trades, and their players, and enhances the eventual resolution of jurisdictional disputes.
20Although there will continue to be instances in which employer practice outside the particular Board Area remains of assistance, in the circumstances before us, we have not found it to be particularly helpful, given our conclusion that there exists meaningful ICI practice evidence within Board Area 1.
21Accordingly, we conclude here that we ought to look initially to demolition project practice within Board Area No. 1. If this practice evidence is not sufficient to enable the Board to dispose of the matter, we will look next to other ICI practice within Board Area No. 1. Again, demolition is a subset of, a type or part of, ICI construction.
22We turn to the facts. The project in question can be described as a "two-way project", involving both the demolition of the existing building, and the construction of a new structure on the same site. All this work falls within the ICI sector. The hoarding here does not consist merely of plywood sheets erected in place, but of a hoarding with protective canopy and walkway. In this Board Area, demolition site hoarding has more commonly consisted of plain plywood sheets, wire fences, or snow fences. Although we were initially of the view at the consultation that, colloquially put, "hoarding is hoarding", the submissions of the parties have convinced us otherwise. We therefore assess this dispute in the context of the particular type of hoarding.
23It does not appear as if there have been any demolition projects, either by Delsan or any other contractor, in Board Area No. 1 which have involved the erection of similar hoarding. The Labourers' have regularly erected hoarding in Board Area No. 1 on demolition projects, but it has not been of the type in question. While the Labourers' did file an additional list of job projects shortly before the date of the consultation, the information contained therein is insufficient to establish that the Labourers' have a practice of erecting such hoarding on demolitions projects in Board Area No.1.
24Similarly, the Carpenters have no established practice of performing this work on demolition projects in Board Area No. 1.
25For the reasons expressed above, we look next to non-demolition ICI practice in Board Area No. 1. The prevailing practice where hoarding of this nature has been erected has been for members of the Carpenters to have performed the work. In contrast, there does not appear to be any reliable practice evidence indicating that the Labourers' have erected such hoarding in Board Area No. 1. Past practice strongly suggests that this assignment should have been made to the Carpenters.
26Delsan, supported by the Labourers', argued that the skills required for demolition were different than in other types of ICI construction, and more specifically, that it required demolition labourers in order to properly perform the work in dispute. We do not agree. Here, clearly, both trades are fully capable of erecting the hoarding in question, and have the requisite skills and ability.
27The employer asks the Board to endorse an assignment which, from the employer's perspective, is more efficient and economical, and enhances its competitive position. If the employer is able to continue to use a "wall-to-wall" labourers workforce, it will no doubt be less expensive for the employer to perform its demolition projects. This is not an unreasonable concern or proposition. But as was noted earlier in the quotations from prior Board decisions, the industry is statutorily set up and regulated on a single trade basis, not a multi-trade single employer basis. That latter approach led to years of construction industry discord and work interruptions, and greater costs for all participants. The industry is now divided on a trade basis, as reflected by the designation system and the many years of Board's jurisprudence in jurisdictional complaints.
28Again, significantly, the new demolition designation continues this trade division. The Labourers' are designated only to represent "construction labourers" in demolition. This designation is therefore consistent with the overall designation scheme of ICI rights within the province, which, generally speaking, describe or assign representational rights on a trade basis. Within demolition, the Labourers' can only acquire bargaining rights in certification applications for "construction labourers" (see Superior Plumbing, [1986] OLRB Rep. Nov. 1589). There is little to be said for the argument (asserted by the Labourers') that the Labourers' are exclusively entitled to perform all tasks "wall to wall" on demolition projects, even where this involves performing the work of other trades. To the contrary, the Labourers' were only designated to represent "construction labourers". To accede to this argument would be to effectively rewrite the designation in terms of "all employees". Designation amendments are the prerogative of the Minister, and here the Minister has specifically designated otherwise.
29For our purposes, the Labourers' have not been granted exclusive rights to all demolition work, but only rights to perform the work of "construction labourers". Other trades also have claims and the skill and ability to perform demolition work.
30Here, both unions have bargaining relationships with the employer, and both have a reasonable claim to perform the work. The relevant Board Area practice demonstrates that historically this has been work performed by Carpenters. To give prevailing weight to employer preference in such a context would be to render meaningless the historic division between the trades in the Board Area in question. Rather, we conclude that the assignment ought to have been made on the basis of the predominant practice in Board Area No. 1, which is that the Carpenters have performed this work.
31We are concerned by the fact that segments of the hoarding will have to be removed periodically, during the demolition phase of the construction, in order to provide access points for certain pieces of heavy machinery and exit points for various materials. Delsan submitted that it made no sense for members of a different trade to erect the hoarding than would later be required to temporarily remove part of the hoarding. We note that the Carpenters have explicitly acknowledged that they are not claiming the work beyond the initial erection of the hoarding. The Carpenters have recognized the need and justification for the employer to utilize the Labourers' members to perform such subsequent temporary removal and re-erection of parts of the hoarding. Further, given the nature of the hoarding and the skills and abilities of both trades, we are satisfied that members of the Labourers' will be able to efficiently and effectively temporarily remove parts of this type of hoarding and later refasten them, even though they might not have initially erected the hoarding.
32In the result, the Board concludes that the work in dispute was improperly assigned. Therefore, pursuant to the provisions of section 93 of the Labour Relations Act, the Board directs that:
“Delsan Demolition Limited shall assign to a crew composed of members of Carpenters, Local 494 all work in connection with the initial construction and erection of the wooden hoarding with a covered walkway or canopy around the site of the former Steinberg building at Goyeau Street and Chatham Street in Windsor, Ontario."