Sheet Metal Workers' International Association, Local 30 v. Groff & Associates Ltd., 1994 CanLII 9843

[1994] OLRB Rep. July 846

4408-93-JD Sheet Metal Workers' International Association, Local 30, Applicant v. Groff & Associates Ltd. and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 599 (UA Local 599), Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.

APPEARANCES: A. M. Minsky and James Moffat for the applicant; Laurence C. Arnold and

Dennis Carter for the responding party.

DECISION OF THE BOARD; July 28, 1994

1. This is a complaint concerning an assignment of work, in this case, in the construction

industry.

2. The work in dispute in this case is:

"the handling and installation of air handling units being completed and/or knock-down package type heating and cooling units consisting of fans, filters, refrigeration, condensing units, and dampers, with heating coils and/or cooling coils assembled therein, whether or not in connection with the duct system, in Board Area 18".

3. The Sheet Metal Workers' International Association, Local 30 (the "Sheet Metal Workers") complain that the employer Groff & Associates Ltd. ("Groff') should have assigned some of the work in dispute to its members rather than exclusively to members of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 599 (the "UA"). More specifically, the Sheet Metal Workers assert that the work in dispute should have been done by a composite crew of Sheet Metal Workers and UA members.

4. Pursuant to section 93 of the Labour Relations Act, a consultation (which is not a "hearing" as such) was held in this matter on July 7, 1994. Both trade unions appeared at the consultation. The employer Groff did not.

5. Having regard to the materials filed, and the representations of the two trade unions at the consultation, the Board finds it unnecessary to hear evidence or otherwise conduct a formal hearing with respect to this complaint.

6. The work in dispute is in the industrial, commercial and institutional sector of the construction industry. It was performed in the course of the construction of the O.P.P. General Headquarters in Orillia in Board Area 18. The work in dispute was assigned to and performed exclusively by members of the UA. The Sheet Metal Workers submits that the work in dispute should have been assigned to a composite crew consisting of an equal number of members of the Sheet Metal Workers and members of the Plumbers, or, in the alternative, that Groff should have subcontracted the work in a manner such that it was performed on this composite crew basis, and it seeks a declaration and order to that effect.

7. Groff is a mechanical contractor which is bound to the UA's provincial collective agreement in the industrial, commercial and institutional sector of the construction industry. Groff has no collective bargaining relationship with the Sheet Metal Workers.

8. There is an "Interim National Agreement" dated August 31, 1956, between the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, and the Sheet Metal Workers' International Association. Among other things, this trade agreement provides that:

(2) The installation of completed and/or knock-down package type heating and cooling units consisting of fans, filters, refrigeration condensing units, and dampers, with heating coils and/or cooling coils assembled therein, whether or not in connection with a duct system, shall be unloaded and installed by a composite crew consisting of an equal number of members of the Sheet Metal Workers International Association and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, with the under- standing that the members of the Sheet Metal Workers International Association shall install any duct work in connection with the unit and members of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry shall install all piping in connection with the units.

9. The trade unions supplied materials with respect to the employer and area practice upon which they each rely.

10. The UA also asserted that economy and efficiency justified the assignment of the work in dispute to its members.

11. In complaints concerning work assignments, the Board generally considers the factors first discussed almost thirty years ago in Canada Millwrights Ltd., [1967] OLRB Rep. May 195:

— collective bargaining relationships

— trade agreements between the competing parties

— area practice

— employer practice

— safety, skill and training

— economy and efficiency

(More recently, see Acco Canadian Material Handling, [l992] OLRB Rep. May 537; Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915; Vic West Steel, [1993] OLRB Rep. Mar. 256.)

12. The Board's jurisdictional dispute jurisprudence demonstrates that this is not an exhaustive list of factors. It is neither possible to make an exhaustive list, nor appropriate to mechanically apply some formula or list of factors to a jurisdictional dispute complaint. Accordingly, in every case, the Board considers those factors which it considers relevant to the particular jurisdictional dispute before it, which may include some or all of those factors listed above, or others which are not. Some of the six factors listed above will be of little assistance in any given case. For example, in recent years, the jurisdictions asserted by construction trade unions in their various collective agreements (as in their constitutions) have become so broad that they are of little assistance, particularly in cases where the employer which made the disputed work assignment is bound to collective agreements with all of the competing trade unions. Because of the historical development of the division of work in the construction industry on a craft or trade basis, and the ever increasing overlap between the construction trades and the work jurisdictions which they assert, the Board has recognized that collective bargaining relationships cannot, by themselves, be determinative of a jurisdictional dispute complaint. Consequently, while a trade union which has no applicable collective agreement with the employer which assign the work in dispute is likely to have a difficult time in having the assignment altered, a trade union which has a collective agreement with the assigning employer will not necessarily be successful in fending off a claim for work by a trade union which has no collective agreement with that employer (Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143; Pigott Construction Limited, [1992] OLRB Rep. June 748 ("Pigott #2")), so long as the issue is one of work jurisdiction and not one of representation (Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352). On the other hand, a single factor may be determinative of the jurisdictional dispute complaint. Work jurisdiction trade agreements provide one example of a factor to which the Board has given great weight especially in recent cases (Pigott #2, supra; Ellis-Don Limited, [1993] OLRB Rep. Nov. 1130; the various decisions in Kora Mechanical Inc., [1992] OLRB Rep. June 740; and March 3, 1993; April 26, 1993; June 14, 1993; July 12, 1993; Nov. 8, 1993, all unreported). Similarly, although the Board has determined jurisdictional dispute complaints in favour of a trade union which area practice did not favour (Simcoe Mechanical Contracting Ltd., supra; K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185), area practice has more and more often been a determining factor (Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, supra). Indeed, the Board has said that:

"It is the rare and unusual complaint in which the Board does not attach significant and primary weight to area and employer past practice", and that "the real crux of most jurisdictional disputes revolves around the two past practice criteria."

(Electrical Power Systems Construction Association, [1993] OLRB Rep. Nov. 1130).

The emphasis on past practice is reflected in the time and energy devoted to the practice factors in jurisdictional dispute proceedings before the Board.

13. In this case, it is common ground that safety, skill and training favour neither the Sheet Metal Workers nor the UA. The Board is not persuaded that economy and efficiency favour either trade union. This leaves the trade agreement, upon which the Sheet Metal Workers place great reliance, the collective bargaining relationships, which the UA stresses, and area and employer practice, to which both trade unions point.

14. In Kora Mechanical Inc., supra, a different provision in the same trade agreement before the Board in this case was considered and given great weight. Of particular interest is the Board's reconsideration decision dated November 8, 1993 where, at paragraphs 4, 9, 10 and lithe Board wrote as follows:

15. The Board accepted the parties' agreement to proceed first by inquiring into and determining the applicability and interpretation of the INA relative to the work in dispute in each complaint and, based on the result of that inquiry and determination, determine what effect was to be accorded to the INA in the adjudication of the complaints. To that end, the Board heard the parties' evidence about the work in dispute in each complaint and the relationship of the INA to the work, and received their written submissions on the conclusions to be reached on that evidence. The Board considered their evidence and submissions and decided that the work in dispute in each complaint could be described generically as "[T]he handling and installation of enclosures, together with their essential accessories, for finned tube convectors. The enclosures extend from wall to wall and pilaster to pilaster". The Board, however, declined to determine the correct assignment of that work on the basis of the INA without hearing evidence on other criteria, such as area past practice, employer past practice, economy and efficiency and employer preference, usually considered by the Board when deciding work assignment disputes. This was in part because of some evidence which suggested that, with respect to the five employers, the Sheet Metal Workers' Association might have only recently sought to rely on the INA to assert their claim to exclusive jurisdiction over the work in dispute. In these circumstances, the Board also deferred giving at that time its interpretation of the INA. (For ease of reference, the Board will refer to that decision as "Decision No. 1" and its decision which issued June 14, 1993 as "Decision No. 2".) After hearing further submissions from the parties on whether the complaints should proceed individually or "en bloc", the Board ruled that they would be heard together.

16. Finally, with respect to the applicants' claim that Decision No. 2 revives an unused INA and will have a disrupting effect on established and appropriate practices respecting assignment of the work in dispute. The material before the Board relating to past practice in each of the three Board areas reveals a variable practice amongst the employers bound to collective agreements with both the U.A. and the Sheet Metal Workers. In Board area #8, the dominant practice has been to assign the work in dispute to U.A. Local 46, although a relatively significant amount of work has been assigned to the Sheet Metal Workers Local 30 or on some sort of composite crew basis to both trade. In Board area #11, the assignment practice has favoured assignment to a crew composed of members of U.A. Local 463 and Sheet Meral Workers Local 392, while in Board area #12, it has favoured U.A. Local 463, although there has been some practice of assigning it to a crew composed of its members and those of Local 269.

17. It is not unusual in work assignment complaints to find variable past practice within a Board area. It is less surprising in these complaints because, in each of them, the two trade unions have relied on the lNA to claim assignment of work in dispute to their members on the basis that the INA grants them trade jurisdiction over the work. Clearly, both trade union parties to each complaint have acknowledged that the INA covers the work in dispute, but they differ as to which trade gains jurisdiction from its application. Some of the material before the Board shows that difference to have been a significant factor in work assignment disputes between the two trades in Board area #8 in recent years. The significant number of assignments to composite crews in Board areas #8 and #11, and to a lesser extent in Board area #12, relative to the number of exclusive assignments to either a U.A. or Sheet Metal Workers local, also points to the existence of the same dispute at other times in the three Board areas. In the Board's experience, while there might be a number of reasons why composite crews might be used to perform particular work, one of the most common ones is to avoid or resolve work jurisdiction disputes, particularly when the disputing trade unions are bound to a trade agreement and disagree about its interpretation and application to the work.

18. While work assignment past practice is often a significant factor in deciding the correct assignment in work assignment complaints under the Act, it is most useful when the evidence reveals that the practice has developed in circumstances where the disputing trades have been aware that the work was being performed and had the opportunity to challenge its assignment. The Board does not have that kind of evidence in these complaints. In these circumstances, therefore, when the Board was weighing the significance of past practice and the other factors, including the INA, in deciding the correct assignment of the work, it should not be surprising that the Board would give significant weight to the INA when the disputing trade unions, even though they disagreed on its interpretation, have relied on it themselves to claim the work for their respective trades. The Board interpreted it in Decision #2 to give jurisdiction over the work in dispute in these complaints to the Sheet Metal Workers. It believed then, as it does now, that its interpretation is correct and points to the correct assignment of the work in dispute in each complaint as being to the Sheet Metal Workers local which is a party to the complaint.

19. In this case, the Board is also satisfied that the Interim National Agreement is a trade agreement binding on the Sheet Metal Workers and the UA, and that it covers the work in dispute. However, the UA argues that the trade agreement applies only where both trade unions have an applicable collective agreement with the employer, and that where only one of the two trade unions has such a collective agreement, its members should be assigned the work exclusively, particularly where, as the UA asserts is the case here, area and employer practice in the area also favour such an assignment.

20. Section 93(1) of the Labour Relations Act provides that:

93.- (1) This section applies when the Board receives a complaint,

(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another; or

(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another.

It contemplates that persons who are members of no trade union, non-construction trade unions, and non-craft construction trade unions, as well as craft construction trade unions, may be involved in a jurisdictional dispute. Nothing in section 93 or elsewhere in the Labour Relations Act is intended to divide construction industry work among building trades construction unions. The purpose of section 93 has always been to provide a mechanism for resolving disputes over work jurisdiction without the disruption caused by the parties engaging in economic conflict (Toronto Star, [1979] OLRB Rep. Aug. 811), and which can deal with all of the competing interests in a single forum, something to which no other provision in the Act is suited (Napev Construction Ltd., [1980] OLRB Rep. Feb. 247; Harold R. Stark Co. Ltd., [1982] OLRB Feb. 222 and April 576). The jurisdictional dispute provisions of the Labour Relations Act have never been intended to deal with representation issues as such, and a jurisdictional dispute complaint is not a process through which a trade union can obtain representation rights. There is nothing in the amendments which came into effect on January 1, 1993 which altered that.

16. Consequently, where one of the trade union parties does not have an applicable collective agreement, a trade agreement will not necessarily, by itself, result in award of work which it covers to the beneficiary trade union under that trade agreement, even in a contest with another trade union party to that trade agreement. The Board generally gives significant weight to jurisdiction arrangements between trade unions, subject to there being a good reason for not applying what appears to be an otherwise applicable trade agreement. For example, a dominant contrary area or employer practice in the appropriate geographic area may cause the Board to give less weight to a trade agreement. Nor will a trade agreement necessarily carry the day where the issue is one of representation, or one of both representation and trade jurisdiction.

17. In this case, for example, what if Groff had assigned the work in dispute to a composite crew consisting of an equal number of non-union sheet metal workers and members of the UA? Even the Sheet Metal Workers conceded that, on the basis of decisions like Simcoe Mechanical, supra, that scenario would raise a pure representation issue and it would have no real jurisdictional dispute complaint. What makes the situation different now? Even if the Board concluded that the work in dispute in this case should have been done by a composite crew of Sheet Metal Workers and Plumbers, on what basis would the Board declare that the Sheet Metal Worker trade component of the work should have been assigned to members of the Sheet Metal Workers' union, since there was nothing to oblige the employer to do so? Further, on what basis would the Board order, either with respect to the project in issue or in future projects, that Groff assign any sheet metal worker trade component of the work in dispute to members of the Sheet Metal Workers' Union rather than to any sheet metal worker tradesmen Groff chose, whether members of the Sheet Metal Workers Union or not? And why and what basis would the Board make that kind of order?

18. As its name suggests there was a predecessor to Pigott #2; namely, Pigott #1 (Pigott Construction Limited, [1990] OLRB Rep. April 441). Paragraphs 27 to 41 of Pigott #1 read as follows:

19. The fact that Pigott is bound together with the Carpenters and the Labourers to collective agreements which are the products of a collective bargaining relationship enforceable by statute and has no similar collective bargaining obligation to the complainants, raises a rebuttable presumption in favour of upholding Pigott's assignment to its carpenters and construction labourers who are members of the Carpenters and the Labourers. Pigott's collective agreements with the Carpenters and the Labourers give them exclusive bargaining rights for Pigott's carpenters and construction labourers and impose a legal obligation on Pigott to recognize those rights. That obligation would require Pigott to recognize, at the very least, that the Carpenters has some claim to the work listed in Schedule "A" of the carpenters provincial agreement and that the work listed arguably includes the work in dispute herein. While the claim in Schedule "A" does not express any better claim than that described in the complainants' collective agreements, the claim in Schedule "A" has the strength of being founded in collective bargaining rights. The labourers provincial agreement does not express an independent claim to the work in dispute. Pigott's obligation to the Labourers under clause 2.06 of that agreement is to assign to members of the Labourers the work of "tending carpenters". Therefore, if Pigott assigns the work in dispute to the Carpenters, it must also assign to the Labourers the associated "handling and conveying of materials". While the Labourers' claim is dependent upon the Carpenters' claim, it too has the strength of being founded in its collective bargaining rights for Pigoti's construction labourers.

20. Pigott has no comparable obligation to the IBEW and the UA. How, then, can those unions legitimately claim that Pigott was obliged to assign the work in dispute to IBEW electricians and UA plumbers? If there is an answer to that question that is favourable to the complainants, it is to be found in the construction industry context in which the dispute arises.

21. The work in dispute is in the industrial, commercial and institutional ("ICI") sector of the construction industry in Metropolitan Toronto and nearby municipalities, as were all 17 hospital construction projects in evidence herein. The unionized part of the ICI sector of the construction industry in Ontario has been subject to the province-wide bargaining scheme of the Act since 1978. Pigott, the Carpenters, the Labourers, the IBEW and the UA are parties to whom the province-wide bargaining scheme applies. The collective agreements binding upon Pigott, the Carpenters and the Labourers are products of bargaining under that scheme. While the IBEW and the UA are not bound to collective agreements binding on Pigott, they are bound to the electricians provincial agreement and the plumbers provincial agreement together with electrical and mechanical contractors for whose electricians and plumbers the IBEW and the UA hold bargaining rights in the ICI sector. When Pigott and the other general contractors on 16 of the 17 hospital construction projects in evidence decided to subcontract the work which included the installing of the patient service modules, they subcontracted the work to electrical or mechanical contractors bound to the electricians and plumbers provincial agreements. As a result of those subcontracts, the patient service modules were installed by IBEW electricians and UA plumbers under their respective provincial agreements. Where the patient service modules were to house both electrical and medical gas services, they were installed by crews composed of equal numbers of IBEW electricians and UA plumbers, except on Pigott's Scarborough Centenary Hospital project where they were installed by IBEW electricians. Pigott was not obliged, and there is no evidence the general contractors on the other hospital projects were obliged, once having decided to perform the work, to let it to a subcontractor who would have the work performed by persons belonging to those two unions. The Carpenters union was aware of those subcontracts and the resulting work assignments to IBEW electricians and UA plumbers, but did not contest any of them. So, whatever claim to the work in dispute the Carpenters union has under Schedule "A" and clause 19.01 of its provincial agreement or the collective agreements which were in force prior to province-wide bargaining in 1978, it did not rely on those provisions to claim the work by way of grievances or work assignment complaints.

22. Having work performed by way of subcontract to trade contractors like the electrical and mechanical contractors on the hospital projects, is fairly typical of building construction in the unionized part of the ICI sector of the industry. That practice results largely from the historical development of a division of labour in the construction industry based on the principle of operational specialization, particularly in the United States and Canada.

23. The effect of the division of labour by trade or craft is clearly visible in the international unions which represent construction tradesmen in Canada and the United States. Approximately 20 of these unions joined together to form the Building and Construction Trades Department of the AFL-CIO. They are known as the building trades unions. Some 13 of these building trades unions have a presence in construction in Ontario. They also are the unions who hold the exclusive bargaining rights for their trades under the province-wide bargaining scheme in the ICI sector. Historically each building trades union has sought to organize all of the employees in its trade rather than all of the employees of an employer, as in the industrial union model. Each claims to itself exclusive jurisdiction in the construction industry for its trade and the work performed by the trade. That is one means by which each of these unions seeks to assure that its members will retain a share of the available work in the industry. These are institutional claims and, while the building trades unions will seek to enforce their claims through protective provisions in their collective agreements, they have used whatever lawful means which they thought would be effective in the particular circumstances. A classic work jurisdiction dispute results when a union perceives "its work" being done by persons other than its members and seeks to change that circumstance by demanding that it be done by its members. Where, as here, it occurs in the unionized ICI sector of the industry, it is a struggle between two or more of the building trades unions over which union's members will do the work.

24. One of the effects of operational specialization on building construction is visible in the way employers have organized themselves to perform construction work. Typically there are general contractors and trade contractors. A general contractor usually deals directly with the purchaser of construction and takes charge of an entire project. The general contractor may employ bricklayers, carpenters, construction labourers, cement masons (cement finishers), operating engineers and rodmen, but may, and frequently does choose to perform only a limited amount of work with its own employees. Instead it will choose to subcontract packages of work to subcontractors, many of whom will limit the work they take to that which is performed by one or two trades. These are the trade contractors and their specialization is defined by the trades which they employ and, in the unionized part of the industry, by the trade unions representing those trades. In the unionized ICI sector in Ontario, an electrical contractor employing only electricians represented by the IBEW and a mechanical contractor employing only plumbers and steamfitters represented by the UA would be common examples of trade contractors. 16 of the 17 hospital projects in evidence in this proceeding are examples of general contractors subcontracting packages of electrical and mechanical work to electrical and mechanical trade contractors.

25. One of the obvious consequences of such practices is that trade contractors are largely dependent upon general contractors continuing their subcontracting practices. So are the trade unions which represent those trades dependent on the practices continuing for there to be work opportunities for their members, unless, of course, the general contractor employs them directly to do the work. Where, as has happened here, the general contractor assigns work directly to a trade different from the one which would have performed it had the general contractor subcontracted the work, it poses a difficult dilemma for the trade union whose members lose the work opportunity. For example, in the instant case, the real complaint of the IBEW and the UA is with Pigott (and the Carpenters and the Labourers), but they have no collective agreements with Pigott and, therefore, no grievance and arbitration process available to them. The agreements binding on the IBEW and the UA are with electrical and mechanical contractors who likely share with the two unions their interest in retaining jurisdiction over the work in dispute. When Pigott disagreed with the complainants' claim to the work, they pursued the claim by filing this complaint under section 91 of the Act.

26. Work jurisdiction disputes are a perennial problem for the construction industry. Seen from outside the industry, they appear to be senseless fights between members of the building trades family of unions about which union's members are to get a particular work assignment; or, to put it another way, about which union's members will be employed and which ones will be unemployed. But when such disputes are viewed in the context of the operational specialization prevalent in the construction industry, the claim of jurisdiction over a particular kind of work is but one of several mechanisms relied on by the building trades unions to protect their members' share of the available work. Protecting work jurisdiction claims is an integral part of the union security provisions in construction industry collective agreements. The closed shop hiring hall system and limiting the subcontracting of the claimed work to contractors with whom the union has a collective bargaining relationship complete the protection. This approach to job security might not be acceptable outside of the construction industry, but that is not reason to condemn its use in the industry. Those mechanisms both reflect and attempt to balance the economic and structural forces which operate in the construction industry.

27. This work jurisdiction dispute arises in the context of the unionized part of the ICI sector of the construction industry in Metropolitan Toronto and nearby municipalities. During the 13 years represented by the past practice evidence in this case, unionized contractors have been performing work in the sector and area with employees who are represented in collective bargaining by the building trades unions. Since January 1978, those relationships have been regulated by the province-wide bargaining scheme. Under that scheme, each building trades union can represent only employees in the trade for which it has been designated. It is in this context that the work in dispute has been performed on hospital projects exclusively by trade contractors under subcontract from general contractors, but for the single exception on the Credit Valley Hospital where the general contractor performed it with its own forces, members of the Carpenters. But for that exception, the work has been performed exclusively by IBEW electricians and UA plumbers employed by the trade contractors. That is the overwhelming past practice and clearly it is the product of the various contractor and trade union players in this segment of the construction industry playing out to the fullest extent the operational specialization characteristic of the industry.

28. Pigott previously has not assigned the work to the Carpenters and Labourers. Nor has it employed IBEW electricians or UA plumbers to perform the work. It has subcontracted the work to contractors who in turn have assigned it to IBEW electricians and UA plumbers. To this extent at least, Pigott has contributed to the area past practice of the work being performed exclusively by IBEW electricians and UA plumbers with the single exception of the Credit Valley Hospital project.

29. The letting of the work on the other projects to subcontractors and assignment of the work to the IBEW and the UA, was not contested by the Carpenters and Labourers. Clearly, there has been an acceptance of that subcontracting and of those assignments. With it there has developed a consistent and long standing practice of the IBEW and the UA installing patient service modules in hospitals where the modules will contain electrical and medical gas devices. Now, after 13 years of their members installing patient service modules on all but one of the hospital construction projects in Metropolitan Toronto and nearby municipalities, as a result of Pigott's assignment of that work to the Carpenters on St. Joseph's Hospital, the IBEW and the UA see their work being done by members of other trade unions. To them, that is a direct challenge to the stability of what they believe is their established work jurisdiction.

30. If the Carpenters, the Labourers and Pigott are correct and the IBEW and the UA cannot make a successful claim for the work in dispute under section 91 because they lack collective agreements with Pigott, there may well be no other lawful recourse open for the IBEW and the UA to establish that their consistent and long standing practice of installing patient service modules gives them jurisdiction over that work on hospital construction projects in the unionized sector of the construction industry in Metropolitan Toronto and nearby municipalities. From a practical point of view, they cannot gain jurisdiction by obtaining bargaining rights for Pigott's employees since it does not employ electricians and plumbers and the IBEW and the UA are prohibited by statute from representing any other trades in the ICI sector of the construction industry. If it is intended that the Board's jurisdiction under section 91 be used to fashion remedies which will lessen work assignment disputes in the construction industry, the result argued for by the Carpenters, the Labourers and Pigott would be counter to that objective. Furthermore, the result suggests that the Board would exercise its discretion under subsection 91(1) to refuse to inquire into a complaint if the trade union claiming the work in dispute does not have a collective agreement covering the work with the employer who is or was assigning it and the trade union to which it has been assigned does. From even the small sampling of the Board's jurisprudence on work assignment complaints relied on by the complainants, it would appear that the Board has not taken that approach. It would appear also that unionized employers in the construction industry and the trade unions which represent their employees either have accepted that a trade union can bring a work assignment complaint in those circumstances, or they have not persuaded the Board in any reported decision to refuse to inquire into such work assignment complaints. Thus, to this panel of the Board, it appears that, prior to this complaint, the Board has not ever refused to consider whether any of the other usual criteria were so compelling as to override the lack of a bargaining relationship between the union claiming the work and the employer who was assigning it.

31. As noted already, the opposing claims for the work in dispute in this complaint pose the difficult question of whether the Board would direct an assignment which would have the effect of taking work away from persons in the trade union with a collective agreement covering the work, to which the employer who is or was assigning the work is bound, and give it to persons in a trade union which is not bound to a collective agreement with the employer, on the basis of a consistent and long standing practice of that union's members performing that work. The Board has considered it appropriate to set out at some length its views in that regard in deference to the importance of the issue and the attention given to it by the parties. Having done so, however, in the final analysis there is a further element of this complaint which compels the majority of the panel to not decide the question in this case. That element is clause 402 of the electricians provincial agreement. The clause, in the majority's view, makes this complaint a request that the Board direct Pigott to subcontract the work to a third party who will assign the work to a crew composed of equal numbers of IBEW electricians and UA plumbers. This is evident from looking at the effect of directing Pigott to assign the work to such a composite crew. Were the Board to make that direction, Pigott should have the same choices available to it when complying with the direction as it had when it first received its contract from St. Joseph's; that is, to perform the installation of the patient service modules with its own forces or subcontract the work. Should Pigott choose to assign the work to a crew of its own employees composed of equal numbers of IBEW electricians and UA plumbers, it would be unable to do so because of the restrictive hiring practice of the IBEW, one of the joint complainants. Instead, Pigott would have to engage in some form of subcontracting.

32. Thus, while the complainants have jointly asked the Board to direct Pigott to assign the work to a crew composed of equal numbers of IBEW electricians and UA plumbers, the practical effect of the IBEW's hiring restriction is to make their complaint a request that the Board direct Pigott to subcontract the work to contractors who will assign the work in the requested manner. In these circumstances, the Board is of the view that Pigott's assignment of the work in dispute should not be disturbed.

33. Accordingly, pursuant to the provisions of subsection 91(1) of the Labour Relations Act, the Board directs that Pigott Construction Limited continue to assign to carpenters in the United Brotherhood of Carpenters and Joiners of America, Local 27 and to construction labourers in the Labourers' International Union of North America, Local 506, the transporting from a central storage area to the point of installation and installing patient service modules on the walls of patient rooms, including the fitting of face panels and final clean-up, on the St. Joseph's Hospital project.

(emphasis added)

In Pigott #2, the Board (differently constituted in part than in Pigott #1) cited paragraphs 28 to 38 in Pigott #1 but then went on to conclude that:

11. Notwithstanding the above insightful comments, the Board in "Pigott 1" in the end declined to make the declaration for a combined crew sought by the complainants because one of them at least, the IBEW, had a clause in their collective agreement, which they made clear to the Board they would not waive, and which effectively prevented them from supplying electricians to any contractor "whose business is not recognized as electrical work". That meant that an award by the Board in favour of the complainants was an award requiring Pigott to subcontract. The Mechanical Contractors Association of Ontario, as it turns out, some years ago negotiated a similar protection in Article 25 of its provincial agreement with the Plumbers'. However, it is clear from the evidence that the U.A. does have a policy of waiving that restriction, and that such waiver has in fact been expressly recognized in its collective agreement to a degree in 1982, and to a further extent more recently. It is clear, therefore, that Pigott has the choice, should an award go in favour of the complainant, of engaging plumbers to do this work either directly, or through a subcontractor as it has on occasion done in the past.

12. For all of the foregoing reasons, we are of the view and declare that the claim asserted here by the complainant, that the work of installing the washroom accessories at the instant hospital in Toronto should have been assigned in accordance with the 1965 work-jurisdiction agreement between the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and the United Brotherhood of Carpenters and Joiners of America, is correct and ought to be upheld.

In short, Pigott #1 was not followed in Pigoft #2, on the basis of the distinction drawn in paragraph 11 of Pigott #2.

19. Whatever Pigott #2 means, it does not mean that an employer which makes an incorrect assignment of work will necessarily have to assign that work to tradesmen who are members of a particular trade union, or even that it will have to alter the original assignment at all. The Board adjudicates jurisdictional dispute complaints which are brought before it, as between the parties to the particular complaints. The Board is not a labour relations Solomon sitting ever ready to divide up the work jurisdiction pie. However, even though a trade union party to a jurisdictional dispute complaint which has no applicable collective agreement may be unable to persuade the Board to order that work in dispute be assigned to its members, it may be able to persuade the Board to declare that the disputed work belongs to the trade its members practice, or even to order that it be assigned to persons who practice that trade. While this may result in somewhat of an empty victory to a trade union which chooses to bring a jurisdictional complaint in circumstances where it has no collective bargaining relationship with the assigning employer, it would at least give that trade union an opportunity to organize and obtain representation rights for non-union tradesmen through either voluntary recognition or the certification provisions in the Labour Relations Act. This is particularly true now that jurisdictional dispute complaints can generally be brought and disposed of quite quickly.

20. Although the lack of a collective bargaining relationship will not necessarily be fatal to a trade union's claim for work, the result in cases like Pigott #2 should not be taken to suggest either that the collective bargaining relationship factor is unimportant, or that the Board will necessarily direct that work be assigned to members of a craft trade union, even where the Board concludes that some or all of the work in dispute should have been assigned to the craft/trade in which members of that trade union are engaged. On the contrary, a trade union which complains about an assignment of work but has no collective agreement on which to base its claim, will have to satisfy the Board that there are compelling labour relations reasons to interfere with the employer's assignment.

21. In a jurisdictional dispute between two or more craft construction trade unions, it is appropriate for the Board to look to the trade agreement and the collective bargaining relationship factors for the purpose of determining how the work should be assigned as between the competing trades, and not just for the purpose of determining how the work in dispute should be apportioned between the competing trade unions, all in the context of the other relevant factors. The weight given to a trade agreement will depend on the circumstances, including whether it is a Local or International trade agreement, and how and the extent to which it has been applied with respect to the particular work in dispute in the relevant geographic area.

22. In this case, the provincial collective agreements of the respective trade unions both seem to cover the work in dispute. In other words, the work in dispute is within an overlap between the trade jurisdictions claimed by the Sheet Metal Workers and the UA. However, because the UA has a collective bargaining relationship with Groff and the Sheet Metal Workers does not, the UA's claim to the work in dispute on behalf of its members, rather than vis-a-vis the trade which its members practice, is stronger. That is important because the issue in this case is whether the assignment of the work in dispute should be altered in favour of the Sheet Metal Workers, or at all.

23. The trade agreement binding on the two trade unions favours the claim of the Sheet Metal Workers. However, as we noted above, the weight which the Board will give to a trade agreement in a particular case may very well depend on the degree to which the area an employer practice reflects, or at least does not conflict with, that trade agreement.

24. In that regard, and with great respect to the panel in Kora Mechanical Inc., supra, it is not clear how the Board weighed or rationalized the different practices in the different geographic areas in that proceeding. However, the decision in Kora Mechanical Inc. should not be taken to suggest that the Board will necessarily attempt to rationalize a variety of practices into one, or that it will give a trade agreement the same weight in every geographic area, although in a particular case it may well make labour relations sense and be appropriate to do so.

25. The nature of the interaction of trade agreements and work assignment practice is such that tt may well be that a trade agreement is applied in some areas and not in others. Accordingly, the weight given to a trade agreement in one geographic area may not be the same as the weight given it in another, depending on the degree of conflict between the trade agreement and practice factors. Instead, the weight given to a trade agreement by the Board will reflect the manner in which it has been applied in the geographic area(s) in question. Such an area by area approach to trade agreements maintains the emphasis given by the Board to area practice in recent years. At the same time, because it requires a significant or dominant practice to cause the Board to give less or perhaps no weight to a trade agreement, this approach does nothing to undermine true trade agreements. In short, there is no single trump card.

26. In this case, it is appropriate to look at the practice of Groff and the practice in general in Board Area 18 with respect to assignments of the work in dispute. Taking the Sheet Metal Workers best case in that respect, the materials indicate that, since 1985, the work in dispute has been assigned as follows:

a) by Groff - 2 to members of the UA and 1 to a composite crew consisting of a significantly greater number of UA members;

b) by contractors which have a collective bargaining relationship with the Sheet Metal Workers but which the materials did not indicate do or do not have a collective bargaining relationship with the UA - 8 to members of the Sheet Metal Workers and 6 to a composite crew of members from each union;

c) by contractors which have a collective bargaining relationship with the UA but not with the Sheet Metal Workers - 55 to members of the UA.

In summary, contractors in Board Area 18, including Groff, have assigned the work in dispute 8 times solely to members of the Sheet Metal Workers, 6 times to an equal composite crew, one time to a composite crew consisting mainly of members of the UA, and 57 times solely to members of the UA.

27. Outside of Board Area 18, Groff has assigned the work in dispute solely to members of the UA 17 times and sub-contracted it so that it was done by an equal composite crew of Sheet Metal Workers and UA members (at most) 6 times.

28. In our view, there is a dominant prevailing practice in Board Area 18 which is not consistent with the trade agreement between the two trade unions. In this case, the dominant prevailing practice favours the claim of the UA. So does the dominant, though not invariable, employer practice. Accordingly, and also because of the representation issue which arises because the Sheet Metal Workers has no collective bargaining relationship with Groff, the Board is not prepared to give any great weight to the trade agreement in this case.

29. In the result, the Board is not satisfied that the work in dispute in this case was improperly assigned, or that there is any reason to interfere with that assignment of work. This complaint is therefore dismissed.