Labourers International Union of North America, Ontario Provincial District Council Locals 506 and 1081 v. Robertson Yates Corporation Limited, 1994 CanLII 10005

[1994] OLRB REP. OCTOBER 1411

3183-91-JD Labourers International Union of North America, Ontario Provincial District Council Locals 506 and 1081, Applicant v. Robertson Yates Corporation Limited, United Floor Company Ltd., United Brotherhood of Carpenters and Joiners of America, Local 785, Responding Parties

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: Larry Steinberg and Susan Philpot for Labourers, Ontario Provincial District Council; Tony Cornacchia for Labourers 506; Keith Rimmington for Labourers Local 1081; David Cowling, Wally Thornton, Frank Calvi and Vince Panetta for United Floor Company Ltd.; N. L. Jesin and K. Ball the United Brotherhood of Carpenters and Joiners of America, Local 785; no one appeared for Robertson Yates Corporation Limited.

DECISION OF THE BOARD; October 14, 1994

1. This is a complaint concerning work assignment pursuant to section 93 of the Labour Relations Act. The Board held a consultation with the parties. After reviewing the extensive filings submitted pursuant to the Rules of Procedure and the oral representations made by the parties during the consultation, the Board gave an oral decision regarding the work in dispute in favour of the Carpenters union. Herewith are the reasons for that decision.

2. For ease of reference the complainant, Labourers International Union of North Amer­ica, Ontario Provincial District Council Locals 506 and 1081 will be referred to as "the Labourers". The responding parties Robertson Yates Corporation Limited will be referred to as "RYCO"; United Floor Company Ltd. as "United Floor"; United Brotherhood of Carpenters and Joiners of America, Local 785 as "the Carpenters".

3. The parties disagreed over the scope of the work in dispute. The Labourers described the work in dispute as follows:

II - DETAILED DESCRIPTION OF THE WORK IN DISPUTE

17. All work in connection with the handling, distribution, pouring, placing and finishing of con­crete floor construction to "superflat" precise tolerances including the installation of bulkheads or screeds ("the work in dispute") at the Toyota Motor Manufacturing Inc., 1993 Production Control Expansion, Cambridge Plant, Cambridge, Ontario ("the Project").

18. The term "superflat" is one coined by Duron Ontario Limited ("Duron") and originally referred to the particular product and technique developed by Duron for producing a concrete floor in respect of which the deviation in the level of the floor is minuscule. The particular Duron brand of floor, the SUPERFLAT FLOOR is a floor with an "F" number of F100 or higher. The "F" number is a system of measurement and describes the deviation or "tolerance" within which the flatness may vary. The higher the number, the flatter the floor. This system of measurement using "F" numbers is the form of measurement accepted by professional engineer­ing societies (see Declaration of Armando Silvestri, para. 5-7).

19. The brand name SUPERFLAT has taken on a more generic trade usage and "superflat" now refers to floors whose "F" specifications are F40 and higher. The "F" specification for the floor at the Project was F75.

The Carpenters describe the extent of the disputed work as:

PART B - Detailed Description of Work Performed

3. The work is comprised of all work in connection with the fabrication, installation, and dis­mantling of wooden bulkheads at the Toyota Plant Expansion, Cambridge, Ontario. The bulk­heads in question are approximately 8" high.

4. Local 785 does not claim any work in connection with the pouring, placing or finishing of con­crete floor. Local 785 therefore does not agree with paragraphs 17, 18 and 19 as set out in the Applicant's brief.

5. The work was performed at the Toyota Plant in Cambridge, Ontario. RYCO was the general contractor on the Toyota project. RYCO subcontracted the work as described by the Lab­ourers to United Floor. RYCO is bound to both the Labourers and the Carpenters provincial agreements. United Floor is bound by the Labourers provincial agreement but does not have an agreement with the Carpenters. The work in dispute was performed by United Floor using Labour­ers.

6. Counsel originally retained by RYCO was present at the consultation but indicated that RYCO would not be participating but would provide information.

7. The work of pouring, placing or finishing the concrete floor is not being claimed by the Carpenters. It is clear from the submissions of both unions that the portion of the work in dispute is the fabrication, installation and dismantling of wooden bulkheads. Both the Carpenters and the Labourers agreements claim jurisdiction over building bulkheads. Members of both unions have performed the work. When looking at past practice in the context of an employer who has an agreement with only one of the unions to the dispute, this practice is of little value when deciding who the work is to be assigned to. RYCO is in a difficult position faced with competing claims in two provincial agreements to which it is bound. Unfortunately in the construction industry there are many collective agreements with competing jurisdictional claims.

8. Based on the materials filed and the oral representations at the consultation it is the Board's view that in Board Area 6 in the ICI sector the practice of general contractors is to assign work in connection with building bulkheads and/or forms to receive concrete floor construction to the Carpenters. It is not disputed that when RYCO performs this work with its own forces it assigns work in connection with building bulkheads and/or forms to receive concrete floor con­struction, to the Carpenters.

9. It is the Labourers position that in these particular circumstances the fabrication and installation of the bulkheads cannot be considered in isolation when determining the proper work assignment. The project at Toyota involved the installation of a "superfiat" floor. This type of floor is described in Armando Silvestri's declaration filed with the Board. Duron Ontario Ltd. (Duron) developed this type of floor initially for Ontario Hydro in 1978. Mr. Silvestri's declaration reads in part:

10. The term "superflat" is one coined by Duron and originally referred to the particular product and technique developed by Duron to produce a concrete floor that was as flat as possible. That particular product is a floor in respect of which the deviation in the level of the floor is minus­cule. The deviation or "tolerance" within which the flatness may vary is measured by a system of "F" numbers. The higher the number, the flatter the floor. The particular Duron brand of floor, the SUPERFLAT FLOOR, is a floor with an "F" number of F100 or higher.

11. Over time, with the growth of the demand for "superflat" floors and with the development by a few other flooring contractors of the capacity to construct "superflat" floors, the brand name SUPERFLAT FLOOR has taken on a more generic trade usage and "superflat" now refers to floors whose "F" specifications are F40 and higher. This "F" number measurement system has been accepted by professional engineering societies and is now used in plans and specifications.

12. The flatness of a concrete floor is measured with an instrument called a profileograph and, as indicated above, the flatness measurement is expressed in an "F" number. And, while "SUPERFLAT" floors carry an "F" number of F100 and higher, normal wet screed concrete floors have a maximum "F" number of F25. Any Floor which carries an "F" number of F40 and higher is considered a "superflat" or high tolerance floor and the process for attaining a flatness of F40 or higher is the same as that for achieving a "superflat" floor of F100 or higher. For ease of reference throughout, the phrase "superflat" floor will be used and will include a floor with an 'F" number of F40 or higher.

13. In the construction of "superflat" floors, Duron uses a specially trained crew, comprised of cement finisher members of the Labourers', who are involved in each step of the process neces­sary to construct the floor and their involvement in each step is critical to ensure the quality of the floor. This crew would accordingly be responsible to install and set the bulkheads, mount and operate the screeds, and pour and level the concrete.

14. The specialized and precise cement finishing technique involved in the construction of "su­perflat" floors is a multi-step process and can be outlined as follows:

(a) A very critical component of the cement finishing process commences with the installation of the specially-designed wooden or steel bulkheads, once the fine grading and compaction have been completed. These bulkheads are designed to support a heavy-duty vibratory screed and are installed by the cement finisher members of the Labourers'. Unlike ordinary bulkheads on a conventional concrete slab on grade job, which are designed to simply retain the normal-slump concrete, "superflat" slab bulkheads are heavily braced and laid in strips averaging 16 feet wide. These 16 foot-wide strips are not a form to contain concrete, but provide the set of tracks along which the heavy-duty vibratory screed rides. Once the concrete is poured, the bulkheads support this heavy-duty mechanical screed which is required to handle the specified grade of low-slump concrete which is used on these floors. This heavy-duty mechanical screed is the critical element in the cement finishing process for "superflat" floors. The strips themselves range in length depending on the size of the job, but can be over 600 feet long. Once the concrete is poured, the mechanical screed travels on the entire length of the bulkheads, vibrating the concrete to a level precisely flush with the top of the bulkheads.

(b) Because one of the major differences between "superflat" and conven­tional flat slab construction lies in fabrication and positioning of the bulk­heads, there are two steps in the bulkhead installation process which are critical to the ability to attain "superflat" floors. The first involves the con­struction by the cement finisher member of the Labourer's of a specially designed bulkhead which must be heavily braced in order to support the heavy-duty mechanized vibratory screed which will travel along it once the concrete has been poured. The technique required for "superflat" floors is that the bulkheads be rendered immovable, whereas conventional bulk­heads do not require the same degree of solidness. Knowledge and famil­iarity with the operation of the heavy-duty mechanized vibratory screed is essential to this bulkhead installation.

l

Secondly, because the top of the bulkheads provide the precise level of the top of the concrete, the concrete ultimately being flush with the top of the bulkheads, the flatness of the bulkheads must be precise. To achieve this, the cement finisher member of the Labourers' erects the bulkheads initially as close as possible to the final elevation of the floor. The plate (bottom of the bulkhead) is laid down first. Then, with the assistance of a laser or engi­neer s level, the cement finisher checks the levelness of the top of the bulk­head.

Once the bulkheads are installed, the flatness of the top of the bulkheads is checked longitudinally and any high spots are planed off. The bulkheads are then checked across the strip using a straight edge to which a machinists level has been secured.

(c) Once the dowels have been set along the length of the bulkheads by the cement finisher, the concrete is poured in whole strips, one strip at a time and only in alternating strips. Once the concrete is poured, a heavy-duty mechanical screed is placed on the bulkheads which act as a track to guide and support the cement finishing screed machine, and vibrates the concrete to the proper elevation. Once the power screed has passed over the strip, a handheld magnesium straight edge is used by the cement finisher latitudi­nally to ensure that the concrete is flush with the top of the bulkheads. At least two and sometimes three passes are made with the magnesium straight edge, the guide being the top of the bulkheads. Finally, a highway straight edge is used by the cement finisher across the strip, over and over again, up and down the length of the strip, to attain the final flatness required for these floors.

(d) Once the concrete is poured and has set in the alternating strips, the bulk­heads are removed and the same process for pouring and levelling the con­crete is applied in between the strips. The bulkheads are no longer neces­sary at this point because the screed machine runs along the "superflat" strips of dried concrete on either side of the second round of pours. Because the already-poured concrete provides the tracks for the screed machine and allows the second set of strips to be finished, it is essential that the initial strips, and the bulkheads, have been precisely laid.

(e) The final step in the process is the checking of the flatness of the floor with the profileograph. This is the method by which the owner can ensure that the specialty floor finishing contractor has produced a "superflat" floor.

10. In addition to the need for the skills and experience of a cement finisher member of the Lab­ourers' to properly install the bulk-heads and screed, in constructing a "superflat" floor, it is the most economic and efficient use of labour to ensure that the entire crew has the skill, training and experience necessary to perform each aspect of the "superflat" floor construction process. Depending on the size of the job, it may take only a half-day to install and set the bulkheads and mount the screed. It would be uneconomical to hire carpenters through the hiring hall for a half day of work.

11. In addition, because of the highly skilled and precise nature of the "superflat" floor finishing process, it would be uneconomical and inefficient to be required to hire carpenters through the hiring ball to install the bulkheads. The installers of the bulkheads and screeds must be experi­enced and skilled at the "superflat" floor finishing process. The concrete floor contractor could not deliver a "superflat" floor if it was required to train carpenters referred from the local

Union hiring hall to perform superflat bulkhead installation each time a construction job, any­where in the province, required bulkhead installation.

9. In terms of skill and ability the greater precision required in setting the bulkheads would favour the Carpenters who use precision optical instruments as tools of their trade. The Board accepts the submissions set out in Mr. Silvestri's declaration including the fact that there are specially trained members of the Labourers who possess the skills to do the work claimed by the Carpenters. However special training and expertise acquired by one trade union, especially while in the employ of a single trade or specialty contractor, cannot be used to support a claim to take away trade jurisdiction from another union.

10. Economy and efficiency is one of the criteria the Board looks at when determining trade jurisdiction. There are no submissions from RYCO with respect to the economy and effi­ciency of using one trade over another to perform the disputed work.

11. As stated earlier the Board had given an oral ruling that the fabrication, installation and dismantling of wooden bulkheads is the work of the Carpenter. The work was improperly assigned and pursuant to section 93 of the Labour Relations Act the Board directs that:

RYCO shall assign to the Carpenters all fabrication, installation and disman­tling of bulkheads in Board Area 6 in the ICI sector.

12. Prior to the written reasons issuing the Labourers requested reconsideration of the Board's oral ruling. The grounds for the reconsideration are set out in Schedule "A" of the Lab­ourers' Request for Reconsideration. The Labourers requested the Board reverse its "bottom line" ruling that "the work in dispute is Carpenters' work and find that the work in dispute is the work of the Labourer's.

13. The reasons for the request are set out in paragraph I of Schedule "A":

I REASONS FOR REQUEST

This request for reconsideration is based on the fact that the Board made obvious errors, failed to permit the Applicant an opportunity to make representations on material facts and, as a mat­ter of policy, failed to consider and apply its well established jurisprudence to the facts. In par­ticular the Board:

1. Ignored its previous jurisprudence and thereby either incorrectly determined or failed to determine the particular work in dispute.

2. Failed to consider the employer and area practice evidence before it.

3. Failed to comply with the rules of natural justice.

4. Failed to follow its own jurisprudence as to the content of a consultation.

5. The reconsideration request is summarized below. The Labourers object to the Board determining the work in dispute in the absence of the parties agreement. The Labourers disagreed with the Board's conduct of the consultation and the Board's refusal to allow additional evidence to be called. The applicant submits the Board has failed to act in accordance with the rules of natu­ral justice in the following ways:

(i) it refused the parties the opportunity to make submissions with respect to the particu­lar work in dispute;

(ii) it refused both the Labourers and United Floor the opportunity to call evidence as to why the particular skill and knowledge of cement finishers is necessary in order to install bulkheads on superflat floors;

(iii) it refused to hear submissions in respect of the relevance of the documentary evidence filed by the Carpenters;

(iv) it refused to allow the Labourers to call Mr. Armando Silvestri to explain part of his Declaration;

(v) it refused to allow the Labourers and United Floor to make submissions as to the issue of the employer and area practice evidence;

(vi) it refused to permit counsel for United Floor to make any comments at all at the con­clusion of the proceeding.

15. The Labourers referred the Board to section 104(13 which states:

104..(13) The Board shall determine its own practice and procedure but shall give full opportu­nity to the parties to any proceeding to present their evidence and to make their submissions.

In paragraph 4 the applicant states:

4. Consultations - According to the Board

Even in the event that Section 104(13 of the Act does not apply to consultations, at the very least, the Board's comments in Ontario Hydro [1993] O.L.R.B. Rep. May 442, should guide the Board's conduct during a consultation. In that decision, the Board stated at paragraph 10:

"In this case, the Board found it appropriate to schedule a consultation, a proceeding which is something less than a hearing in the traditional sense. Nevertheless, a consul­tation is an opportunity, perhaps the only opportunity, for the parties to a jurisdic­tional dispute complaint to address the Board with respect to the matter. The rules of natural justice do not apply to such a proceeding in any traditional sense. However, the parties are afforded the opportunity to refer to the extensive materials which they are required to file in such cases, and to make representations with respect to how the Board should proceed, including whether the Board should hear evidence or other­wise hold a hearing on any matter or issue) or dispose of the complaint."

In our case, the Board did not afford the parties any opportunity to refer to the extensive mate­rials filed, nor did the Board allow the Labourers or United Floor to make representations with respect to how the Board should proceed, or how the complaint should be disposed of. In fact, she parties requested an opportunity to call evidence, indicated the reasons for that request and asked for an opportunity to make submissions in respect of various issues which were raised by the Board as issues in dispute. All those requests were refused without reason.

The Board has denied the Labourers their right to natural justice in determining this jurisdiction dispute complaint. Whatever the standard required in a "consultation", the Board has not met that standard. Once the Board has determined that it will hold a consultation, it must act judi­cially in doing so. By raising a variety of issues in the Consultation and subsequently refusing the parties any opportunity to address those issues in any meaningful way, through evidence and submissions, the Board has acted unfairly.

For the foregoing reasons, the Labourers hereby respectfully request that the Board reconsider its decision of June 23, 1993, that "the work in dispute is Carpenters work."

16. Dealing first with the description of the work in dispute. The parties to this dispute had the opportunity to make full written submissions with respect to all the material and information they wished to put before the Board. The written submissions were precise in terms of how each union viewed the disputed work. The pouring and screeding of the concrete is not claimed by the Carpenters. The Labourers took the position the work in dispute must be viewed as one operation and that the installation of the bulkheads cannot be dealt with separately.

17. The panel reviewed and considered all of the submissions and materials filed and decided it did not need to hear additional evidence. The Board accepted the oral and written sub­missions of the parties. There was no need to have Mr. Silvestri explain his very written detailed declaration of what is involved in the construction of a superfiat concrete floor. The Board under­stood the applicant's position. The Board disagreed with the applicant's assertion that these "su­perflat" concrete floors should be viewed differently from other concrete floors.

18. Extensive materials were filed in this jurisdictional dispute. The panel was satisfied it had sufficient material before it to make its determination. The Board in paragraph 9 of Ontario Hydro, supra, stated:

For years prior to January 1, 1993, the construction labour relations community cried out for a more responsive and expeditious jurisdictional dispute process before the Board. On January 1, 1993 the present section 93 of the Labour Relations Act came into effect. This provision is a response to the community's call and contemplates a much more expeditious procedure. The Board's new Rules of Procedure with respect to jurisdictional dispute (Rule 72-76) complement the new section 93 of the Act and also contemplate a radically expedited procedure. The Act and the Rules both contemplate that a complaint concerning work assignment may be disposed of without an oral hearing. The Act specifically gives the Board a discretion with respect to whether or not it will entertain a jurisdictional complaint, and also with respect to how the Board proceeds with a complaint it decides to entertain (section 93(1.1)). The Act goes on to provide that the Board may make any interim or final order it considers appropriate after hold­ing a consultation or a hearing (section 93(1.2).

19. The Board accepted the submissions with respect to United Floor's practice. However past practice when developed in the absence of the other trade union to the jurisdictional dispute having any agreements or input in the development of that practice is not very helpful.

20. United Floor requested reconsideration of the Board's decision supporting the Labour­ers' request for reconsideration. The reasons for their request are basically the same. The main issue is the description of the work in dispute and their inability to call further evidence in addition to the written materials before the Board. It is important to note that the work was assigned by RYCO by awarding the disputed work to United Floor, a subcontractor who had an agreement with the Labourers but not the Carpenters.

21. Under the provisions of the Act and the Rules with respect to filing of jurisdictional dis­putes the parties are required to file briefs stating the issues in dispute including a detailed descrip­tion of the work in dispute and the facts on which they intend to rely. Rules 72, 73, 74, 75 and 76 state:

22. An applicant must file with the application, and every responding party must file with any response,

(a) any collective agreement;

(b) any agreement or understanding between the trade unions as to their respective jurisdictions or work assignment;

(c) any agreement or understanding between a trade union and an employer as to work assignment;

(d) any decision of any tribunal respecting work assignment; and

(e) any other document,

relating to the work in dispute which may be in their possession and on which they intend to rely to support their claim for relief or that the relief asked for should not be given, and a statement about any area or trade practice relating to the work in dis­pute, and pictures, diagrams or drawings of the disputed work.

73. Each party must also file at the same time as they file an application or response a brief which contains a statement of the issues in dispute, including a detailed description of the work in dispute, and the facts on which they intend to rely.

74. Each party must deliver the documents set out in Rules 72 and 73 to the other parties before filing them. Each party must, at the time of filing, verify to the Board in writing that they have delivered the documents as required by these Rules.

75. The responding parties' materials must be delivered and filed within 10 days of delivery of the application.

76. Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations, the Board may decide an appli­cation under section 93 of the Act without an oral hearing.

77. The parties filed extensive materials with the Board. The briefs from the Labourers, United Floor and the Carpenters were detailed and helpful to the Board. The declaration from Mr. Silvestri was very detailed and clearly sets out the process of installing "Superfiat" floors. Photo­graphs submitted show the work in progress.

78. The Board's process in dealing with jurisdictional disputes is designed to eliminate lengthy proceedings involving viva voce evidence. The written submissions on behalf of the partic­ular work in dispute by the Labourers and United Floor were complete and very detailed (includ­ing Mr. Silvestri's declaration.) A construction panel of the Board with many years of experience in the construction industry unanimously decided after reviewing and accepting all of the detailed and extensive filings what the particular work in dispute is and the relevant practice in the context of this particular situation. There was no additional viva voce evidence required to clarify the writ­ten documentations. The panel understood the positions of the parties.

79. The Board does not agree with the Labourers and United Floor's position that installa­tion of bulkheads for what is described as "superfiat" floors should be regarded differently than installation of bulkheads on floors other than superfiat floors that have a rating of less than "F40". The applicant does not claim work in connection with the installations of bulkheads on other than superflat floors as defined in Mr. Silvestri's declaration.

80. The work was subcontracted by RYCO the General Contractor who has collective agreements with both the Carpenters and the Labourers. The Carpenters filed a section 126 griev­ance alleging violation of their subcontract clause. The fact that RYCO subcontracted the work to United Floor as a practical matter means that RYCO made an assignment to the Labourers.

81. Having regard to the above and pursuant to the provisions of section 93 of the Act and the Rules for jurisdictional disputes the request for reconsideration is denied.

82. Board Member MacDonald participated fully in the decision making process and approved the above decision prior to his death.