Ontario Labour Relations Board
[1993] OLRB REP. MAY 400
2306-91-G Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers International Association, Local 537, Applicants v. Electrical Power Systems Construction Association and Bechtel Canada Inc., Responding Parties
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: S. B. D. Wahl and N. Agnew for the Sheet Metal Workers International Association, Local 537; M. Patrick Moran, Mama Shecter, G. Brooks and L. Tasker for Electrical Power Systems Construction Association and Bechtel Canada Inc.
DECISION OF S. LIANG, VICE-CHAIR AND BOARD MEMBER W. N. FRASER: May 28, 1993
1This is a referral of a grievance pertaining to the construction industry, pursuant to section 126 of the Labour Relations Act.
2As set out in the decision of the Board dated November 13, 1991, the grievance has two parts. The applicant, the Sheet Metal Workers' International Association, Local 537 ("Local 537" or "the union") asserts that the responding parties are in violation of the agreement by using members of another union to perform certain work that had already been assigned to Local 537 in a mark-up meeting in the fall of 1990. In the alternative, Local 537 asserts that a meeting held by Bechtel Canada Inc. ("Bechtel") in September of 1991 was not a proper mark-up meeting, in breach of the collective agreement.
3In the previous decision, the Board adjourned the hearing of this grievance pending the filing of a jurisdictional dispute. This was done, and after consulting with the parties on February 24, 1993, the Board ruled that the work in dispute should have been assigned to members of the Sheet Metal Workers International Association.
4In the hearing of this grievance, the Board heard evidence from Norm Agnew and Owen Pettipas for the applicant, and Grant Brooks for the responding parties. We also received certain documents on agreement of the parties, which we have reviewed. Much of the evidence is not disputed. It is not in dispute that the parties are bound to a collective agreement effective May 1, 1990 to April 30, 2000.
5On September 11, 1990, Bechtel and The Electrical Power Systems Construction Association ("EPSCA") held a pre-job conference with a number of trades, including Local 537. The purpose of this meeting was to outline to the representatives of the trades an upcoming project to be undertaken by Bechtel. Those present at the meeting were given a package of materials which described the work and also outlined proposed work assignments. The project involved the replacement of a wet fly ash handling system at Nanticoke Thermal Generating Station with four new dry ash handling systems. As outlined in the materials relating to the pre-job conference and mark-up, some of the work on the project was performed by Bechtel, and some was sub-contracted. The purpose of this mark-up was the assignment of the work which Bechtel was to perform.
6Among the work which Bechtel proposed to assign was the installation of "insulated panels" found under the heading "Metal buildings". Bechtel's proposed assignment of this work was to a composite crew of Ironworkers and Sheet Metal Workers. The minutes of the meeting of September 11, 1990 show that there were no disputes with respect to this proposed assignment. Subsequently, on October 17, Bechtel notified the trades of the final work assignments. Insulated panels were assigned to a composite crew of Ironworkers and Sheet Metal.
7On the evidence, it appears that at the time of the October 1990 work assignment, Bechtel did not have specific plans for a metal building using insulated panels. Grant Brooks, Labour Relations supervisor for Bechtel, stated that Bechtel's practice is to conduct "generic" mark-ups which include all work which the company anticipates might be performed on a project, but which might not actually be performed. At the time of this mark-up, Bechtel anticipated that it might erect a "Butler" type of building, which is a pre-engineered or foldaway metal building. For this type of building, Bechtel relied on a trade agreement between the Ironworkers and Sheet Metal Workers in making its assignment. As it happens, Bechtel did not erect any pre-engineered or foldaway metal buildings.
8However, starting in September of 1991, Bechtel did install four indoor modular offices, which became the subject of this grievance and the jurisdictional dispute. These buildings were installed using members of the United Brotherhood of Carpenters and Joiners of America, Local 18. The walls of these buildings were made of wall panels consisting of an outer and inner skin of metal with insulation between the two skins. When work began on these buildings, Local 537 complained to Bechtel, stating that these were "insulated panels" that had been assigned to its members in the October 1990 work assignment.
9There is no dispute that by the time the complaint was made, work had already started on the modular offices. Bechtel ordered a halt to the work and arranged for a meeting with representatives of Local 537 and Local 18. As a result of this meeting, Bechtel requested both trades to submit evidence of their claim to work jurisdiction over the work in dispute. The trades were given 24 hours to do so. Bechtel subsequently, by letter dated September 25, assigned the installation of the wall panels to Local 18. Other work, the installation of metal roof decking and flashing, was assigned to Local 537.
10Counsel for the applicants urges the Board to find that the work in dispute was assigned to Local 537 in the October 1990 work assignment. Although not referring the Board to a specific article of the collective agreement regarding a change in assignment, counsel submitted that the performance of the work by Local 18 violated the agreement where such work had been previously assigned in a proper mark-up process. In the alternative, if the work had not been previously assigned, it should have been the subject of a mark-up meeting held in accordance with the requirements of the collective agreement. The events of September 1991 did not comply with the provisions of the collective agreement regarding mark-up meetings.
11Counsel for the applicant submits that the appropriate award under either alternative position taken under the grievance is the value of the lost opportunity to the applicant. This value is measured having regard to the amount of wages and benefits which would have been paid to members of Local 537. Evidence was called by the applicant as to the number of hours required to install the wall panels in the four modular offices.
12Counsel for the responding parties submits, among other things, that the applicant has failed to prove its case. It has not called any evidence to establish that there were members of Local 537 who were ready, willing and able to do the work in question and has thus failed to establish that any loss was suffered as result of the alleged violation. Counsel relies on Piggott Construction Limited, [1987] OLRB Rep. Apr. 599; Piggott Construction Limited, [1985] OLRB Rep. Aug. 1290; Blouin Drywall Contractors Ltd., 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199, and Schindler Elevator Corporation, [1990] OLRB Rep. Oct. 1092.
13In any event, counsel denies that there has been any violation of this collective agreement. Bechtel does not dispute that it was obliged to hold a mark-up with respect to this work. It takes the position that the meeting of September 1991 and opportunity to submit representations on the work assignment constituted a mark-up under the collective agreement. This work had not previously been assigned. When it became apparent that the work was to be performed and that there was a dispute over the appropriate work assignment, Bechtel gave the two trades the chance to claim the work and submit representations. If the purpose of the mark-up provisions in the collective agreement is that contractors provide the opportunity for trades to claim work, this was achieved by the actions taken by Bechtel in September 1991.
14Article 8 of the collective agreement states:
Article 8
WORK-ASSIGNMENT
8.1 The jurisdiction of the Union shall be that jurisdiction established by agreements between International Unions claiming the work or decisions of record recognized by the AFL-CIO for the various classifications and the character of work performed, having regard for the special requirements of thermal, nuclear or hydraulic generation and transmission and transformation construction.
An Agreement or Decision of Record is one that is published by the Building and Construction Trades Department AFL-CIO (Agreement and Decisions Rendered Affecting the Building Industry).
Where no Decision or Agreement applies, the Employer agrees to consider evidence of established practices of other Employers within the construction industry when making jurisdictional assignments.
8.2 Regular mark-up meetings will be conducted for each project and for transmission and transformation construction at times appropriate for the work in progress. The purpose of these mark-up meetings is to indicate to the Unions the work which is about to be carried out by the Employer in order to minimize the potential for jurisdictional disputes.
EPSCA will provide written notice to the Union as far in advance as possible of mark-up meetings.
The Union will attend these mark-up meetings, and every effort will be made to settle questions of jurisdictional before the dates that management indicates the work is expected to commence.
8.3 The Employer who has the responsibility for the installation shall make a proposed assignment of the work involved. The Employer will specify a time limit for the Unions involved to submit evidence of their claims. The Employer will evaluate all evidence submitted as per Article 8.1 and make a final assignment of the work involved. The Employer will advise the Union of the final assignment prior to work commencing. A copy of such assignments shall be submitted to the Business Manager of the Ontario Sheet Metal Workers' Conference.
8.4 When a jurisdictional dispute exists between unions, and upon request by the Union, the Employer shall furnish the Business Manager of the Ontario Sheet Metal Workers' Conference with a signed letter from a duly authorized official of the company on Employer stationery, stating whether or not the Union was employed on specific types of work on a given project. The Employer shall supply the Business Manager of the Ontario Sheet Metal Workers' Conference with a copy of the evidence submitted by the other union(s) involved along with drawings and/or prints plus a description of the work or process in dispute when requested.
8.5 In the event that a jurisdictional dispute cannot be settled on a local basis by the Unions involved, it shall be submitted to the Unions involved for settlement without permitting it to interfere in any way with the progress of the work at any time. In the event the dispute is not settled by the Unions involved, EPSCA and/or the Union may then submit the dispute to the Ontario Labour Relations Board under the Labour Relations Act. EPSCA and the Ontario Sheet Metal Workers' Conference will advice [sic] each other in writing of their intent to submit a jurisdictional dispute to the Ontario Labour Relations Board and will identify in detail the work in question. The decision of the Ontario Labour Relations Board with respect to the jurisdictional dispute will be final and binding on the parties to this Agreement. The Ontario Labour Relations Board will determine the jurisdictional dispute before it pursuant to its normal criteria.
8.6 In the event the Union pursues or responds to a jurisdictional dispute at the Ontario Labour Relations Board the hearings panel appointed by the Ontario Labour Relations Board pursuant to the Act is not authorized to award damages in respect of a misassignment of work, only in circumstances where the other union(s) involved in the proceedings is (are) equally restricted in their ability to claim for damages. However, this paragraph 8.6 shall not apply where the jurisdictional dispute and the misassignment of work involves the same employer and the same work previously the subject matter of a jurisdictional dispute, relating to a construction project covered by this Agreement or its predecessors, before the Ontario Labour Relations Board.
8.7 In the event the building trades in the Province of Ontario are successful in establishing a Provincial Impartial Jurisdictional Disputes Board, EPSCA and the Union agree to meet and discuss implementation of procedures set forth by said Board.
15We are satisfied that Bechtel violated the collective agreement. We agree with counsel for Bechtel that work in question was not assigned in October of 1990. It is apparent that at that time, no party anticipated the use by Bechtel of modular office buildings. We are satisfied that the wall panels of the modular office buildings that were installed in 1991 were different from the kind of insulated panels used in metal buildings which were the subject of the 1990 mark-up. The work assignment of October 1990 assigned "insulated panels" in metal buildings to a composite crew of Ironworkers and Sheet Metal Workers. Local 537 did not dispute this assignment and claim the entirety of the work for its trade. Neither did the Carpenters make a claim for this work. Further, when the issue arose over the modular office buildings in 1991, the Ironworkers did not make a claim that the wall panels should be installed using a composite crew including members of its trade. All of this is consistent with the conclusion that the intention of the 1990 work assignment was to deal with foldaway or pre-engineered metal buildings, and not with wall panels forming part of modular office buildings.
16That, however, is not the end of the story. If the work had not previously been assigned, then Bechtel had an obligation under Article 8 to assign the work after a mark-up process. The provisions of Article 8 anticipate that more than one mark-up meeting may be held over the duration of a project. Article 8.2 refers to "mark-up meetings" [emphasis added], to be held "at times appropriate for the work in progress". This takes into account the reality that over the course of a project, work may arise which has not been previously marked up, and for which a mark-up meeting is required. Bechtel does not dispute that it was obliged to assign the work in question in a mark-up process, but maintains that the events of September 1991 were sufficient compliance with the requirements of the collective agreement with respect to such a process.
17With respect, we find that this is not so. In several ways, the events of September 1991 did not comply with the requirements of the collective agreement respecting such a process. Most importantly, none of the procedural steps which are required to be taken before the work commenced were actually, if at all, taken until after the work commenced. Bechtel gave no notice of this upcoming work to the interested unions, in writing or otherwise. No proposed assignment was made. The final assignment was made only after the work had commenced.
18Article 8 is very clear as to the purpose of its provisions. It is to "minimize the potential for jurisdictional dispute" by making "every effort...to settle questions of jurisdiction before the dates that management indicates the work is expected to commence." In the case before us, this purpose was thwarted when Bechtel commenced work on the modular office buildings before any discussion with the interested trades as to the appropriate work assignment. Counsel for the respondent states that many of the requirements in Article 8 are "technical" and that Bechtel did comply substantively with its purpose by having the meeting of September 23 and giving each trade the opportunity to make representations. We do not agree that the failure to comply with Article 8 in the case before us was merely technical in nature. It is apparent that it is a significant ingredient of the scheme in Article 8 that potential disputes be dealt with before they become disputes, and that work assignment issues have a chance to be resolved before they result in the disruption of work. Bechtel made no attempt to comply with Article 8 before the dispute arose.
19We therefore find that Bechtel violated the collective agreement when it failed to follow the provisions of Article 8 in the assignment of the work in dispute.
20In the case before us, the applicant asserts that the loss suffered as a result of this violation was the loss of an opportunity. No other theory of damages was advanced. In essence, the applicant asserts that it was denied the chance to make a meaningful claim to the work in dispute in a properly established mark-up process. Had it been accorded the chance to make a meaningful claim, it would have received the opportunity to have its members perform the work. As a result of the violation of the agreement, it was denied this opportunity. In the submission of the applicant, the measure of its lost opportunity is the wages and benefits for the number of hours required to complete the work. The applicant called evidence as to the number of hours it asserts would be required, as did the responding parties. However, the applicant asserts that it need not prove actual loss to its members by proving that it had tradesmen as of September 1991 who were available to do the work. Relying on Ontario Hydro, [1988] OLRB Rep. Dec. 1303, counsel states that it is not necessary for the applicant to prove actual damages in a loss of opportunity case resulting from the failure to hold a proper mark-up meeting.
21Counsel, in our view, is merging two related concepts. Assuming that the appropriate theory of damages in this case is lost opportunity, the applicant has to establish, on a balance of probabilities, that it would have received an opportunity but for the violation and that its members suffered a loss by not having received the opportunity. We agree that it is not necessary for an applicant, in order to be entitled to damages, to establish with 100% certainty that its members would have been assigned the work in question but for the violation of the agreement. However, assuming that the applicant can establish that it would have received the work assignment (or opportunity) but for the violation, it still has to establish that it or its members suffered a loss by not receiving the opportunity. Where there is no evidence that the applicant had members who could have availed themselves of the offer of work, there is no evidence that the applicant or its members have suffered a loss by not receiving the opportunity.
22On the theory of damages advanced by the applicant, we cannot see a distinction between this case, and Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199. In Re Blouin Drywall, the Ontario Court of Appeal upheld an award of damages arising out of an employer's use of non-union employees, stating:
"Having found that the employer was in breach of the agreement, the amount of wages lost, and that there were union members available to do the work, the Board had jurisdiction to make the order in question."
23Re Blouin Drywall, did not involve the failure to observe mark-up requirements in a collective agreement but the loss asserted, i.e. wages and benefits to union members, is the same as that asserted before us. The burden of evidence arising out of Re Blouin Drywall is not a difficult one for a union to meet. In fact, prior to Re Blouin Drywall, the law required a union to name each member that suffered the loss asserted. We note that in Ontario Hydro, supra (and in the subsequent unreported decision of April 17, 1989), which was a "mark-up" case, where the Board did not specifically refer to having received evidence of unemployed tradesman, the issue does not appear to have been raised.
24We therefore conclude that although there is a violation of the collective agreement, and we so declare, we have no evidence of loss on which we can base an award of damages.
25Because of our findings, we do not need to deal with other arguments advanced by Bechtel, including the assertion that Article 8.6 of the agreement precludes an award of damages in any event.
DECISION OF BOARD MEMBER J. REDSHAW; May 28, 1993
I cannot agree with the majority in the position they take regarding damages. To do so would be agreeing that the employer can violate the agreement with impunity.
Counsel for the employer submits that the union did not prove that it had members ready willing and able to do the work. The union should not be required to prove the obvious.
For the last several years the union halls of Ontario have been saturated with unemployed capable members as anyone familiar with construction would know. It should be unnecessary to prove the list. This grievance is about the last opportunity of the union to supply direct hire employees to the employer and not a subcontracting grievance as in the Pigott line of cases.
The union was never afforded the opportunity to supply its members to the employer and I would have awarded damages.