United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 v. Labourers' International Union of North America, Local 506, 1994 CanLII 9923

Ontario Labour Relations Board

[1994] OLRB Rep. September 1222

4514-93-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 and International Brotherhood of Electrical Workers, Local 353, Applicants v. Labourers' International Union of North America, Local 506, Ellis Don Ltd., Groff and Associates Ltd., and The State Group Ltd., Responding Parties v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853, Intervenor #1; International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Intervenor #2

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: James Fyshe, Jim Boyle, Lynn Marton and Glenn McDougall for the applicant and Intervenor #1; John Moszynski, Armando Camarra, Caroline Hart and Tony Doxale for Labourers', Local 506; Denis W. Ellickson for Intervenor #2; no one appeared on behalf of the responding employers.

DECISION OF THE BOARD September 12, 1994

1This is a jurisdictional dispute complaint filed under section 93 of the Labour Relations Act.

2Pursuant to the provisions of the section 93, the Board held a consultation on June 22, 1994. A consultation is not a hearing. A consultation provides the parties to a jurisdictional dispute with an opportunity to address the panel of the Board assigned to the case with respect the matters raised in it, as disclosed by the comprehensive briefs they are required to file in jurisdictional dispute proceedings. The consultation process is intended to be an expeditious means for dealing with jurisdictional disputes, which disputes often create labour relations problems, particularly in the construction industry. Although it is open to a panel to convert a consultation into a hearing and to hear evidence with respect to some or all of the issues raised in a jurisdictional dispute complaint, the Board's experience has been that it is rarely necessary to do so. On the contrary, since section 93 was amended to its present form effective January 1, 1993, the consultation process has proved to be an effective and expeditious means for dealing with jurisdictional disputes, without the need for hearing days of evidence~ and in stark contrast to the ponderous jurisdictional dispute process in place prior to January 1, 1993. Indeed, a consultation usually takes less than a day and often concludes with an oral ruling (with or without reasons).

3In this case, the Board did not render a decision at the conclusion of the consultation. The Board wished to consider the materials filed and the representations of the parties, including a suggestion that the Board should hear evidence of area and employer practice, perhaps some thirty years of it, before issuing a decision.

4Employer and area practice are two of the factors often considered by the Board in jurisdictional dispute complaints. First set out in Canada Millwrights, [1967] OLRB Rep. May 195, the factors most commonly considered by the Board can be summarized as follows:

— collective bargaining relationships;

— skill and training;

— safety, economy and efficiency;

— employer practice and preference;

— area practice.

A review of the Board's jurisprudence reveals that this is not an exhaustive list, and that these or any other factors are not necessarily significant in every case. It is neither possible to make an exhaustive list of relevant factors, nor appropriate to mechanically apply some formula or list of factors to a jurisdictional dispute complaint made to the Board.

5Some of the five factors listed above will be of little assistances in any given case. Indeed, in recent years, the work jurisdictions asserted by various trade unions in their collective agreements or constitutions (particularly in the construction industry) have become so broad that a consideration of this factor is often of little assistance. Because of this, the historical development of the division of work in the construction industry on a craft or trade basis, and the increasing overlap between the various trades and the jurisdictions 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 collective agreement with the employer which assigned the work in dispute may have a difficult time in having the assignment altered, a trade union which has a collective agreement with the employer which made the assignment will not necessarily be successful in fending off a claim for such work by a trade union which does not have a collective bargaining relationship with that employer (see, for example, Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143; Piggott Construction Limited, [1992] OLRB Rep. June 748 ("Piggott 2"). On the other hand, a single factor may be determinative of a jurisdictional dispute complaint. Work jurisdiction agreements provide one example (Piggott 2). In some cases, area practice will be determinative (Rena Construction Company Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, [1992] May 537); although in other cases the Board has awarded the work in dispute to the trade union which that factor does not favour (see, for example, Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352; K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185). In recent years, area practice has become a dominant factor in terms of the time and energy devoted to it in jurisdictional dispute proceedings. 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 these two past practice criteria". (Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915). On the other hand, there are other cases in which the "practice" factors do not assist (see, for example, Vic West Steel, [1993] OLRB Rep. March 256, application for judicial review dismissed June 1, 1994 [now reported at [1994] OLRB Rep. June 803]).

6In this case, the Board finds it appropriate to dispose of the jurisdictional dispute on the basis of the materials filed and the representations of the parties at the consultation. The Board is not persuaded that it is necessary to hear evidence with respect to any issue, including area or employer practice.

7The work in dispute in this case is certain clean up and "housekeeping" work on construction sites at the Oakville Trafalgar Memorial Hospital in Oakville and the Princess Margaret Hospital in Toronto. The parties have provided various rather lengthy definitions of the work in dispute as follows:

(a) By the United Association of Journeymen and Apprentices of the

Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 ("UA, Local 46") and the International Brotherhood of Electrical Workers, Local 353 ("IBEW, Local 353"):

The work which appears to be claimed by the Labourers concerns the general clean up of material and debris on the job sites. Periodically, the general contractor, Ellis Don Limited, will arrange with the subcontractors for a general clean up on a designated floor of the building under construction. Each of the mechanical, electrical etc. sub-contractors assign their own employees to the clean up. The employees are journeymen or apprentices of the particular trade.

The employees on the general clean up walk the floor picking up materials and debris that have been left behind from the work performed by their own sub-contractor (the plumbing, electrical etc. tradespersons respectively).

(b) By the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853 ("UA, Local 853"):

Clean up of debris and material in relation to the installation of sprinkler systems (trade clean up) has always been part of the work performed by sprinkler fitters. It also has always been part of the work included in any bid by a sprinkler fitter contractor.

This trade clean up is usually performed by sprinkler fitters on a daily basis as they complete their work in a specific area. Debris is cleaned up and disposed of in a bin or similar container. Re-usable materials are piled in a neat and safe fashion, tools are moved to the appropriate work station or are stored for re-use in that area. The final clean up of the work area, with a broom and shovel, is performed by Labourers in the employ of the general contractor.

If the trade clean up is not properly performed, the sprinkler fitter contractor will suffer a charge back from the general contractor.

It is not uncommon for the trade clean up to be done as part of an all trade clean up which is organized on a periodic basis rather than on a daily basis as outlined above. Once again, the final clean up, with a broom and shovel, is done by Labourers after the trade clean up has been completed. Once again, each contractor remains responsible for the clean up of its own debris and materials and will be charged back by the general contractor if the trade clean up has not been properly done.

Local 853 agrees with the submissions contained in the applicant's regarding the nature of the clean up work, the responsibility of subcontractors for clean up work, the significance of the Occupational Health and Safety Act in relation to clean up and the circumstances when a broom is uses by tradespersons as presented in paragraph #2a), b), c), d) and e) of Applicants' Brief.

With respect to the Oakville job site clean up is being done by sprinkler fitters as they complete work in an area. Sprinkler fitters are not involved in any all trade clean up.

The situation is different at the Toronto job site. Sprinkler fitters do participate in an all trade clean up. Daily clean up is done, but debris is collected in different places and left for disposal at some future time as part of an all trades clean up. The primary reason for using this procedure is the difficulty in securing elevators. The Princess Margaret Hospital is a very tall project and there has been intense competition for the use of the elevator, which makes the daily disposal of debris difficult.

(c) By Labourers International Union of North America, Local 506 (the "Labourers"):

12. The general description of the work is all clean up of work area at Ellis-Don's Oakville and Princess Margaret Hospital job sites, including but not limited to cleaning and clearing of all debris, removal of surplus materials or debris, sweeping, snow shovelling, collection and removal of all miscellaneous garbage, but not including the daily clean up.

13. The trades required to perform the work have varied, depending on which trades were on site as the work has progressed. The other trades are performing clean up of surplus material and debris generated by workers other than their own members and are not performing only the daily clean up of their own material and debris.

14. The work areas are being cleaned by different trades without regard to which trade has generated the majority of the material and debris. Plumbers for example, have been assigned to clean areas where the majority of the debris is concrete work. Electricians have been assigned to clean areas where the majority of the material was generated by Plumbers, Iron Workers or Sheet Metal Workers. Contrary to the statements made by the Applicants, the employees are not only cleaning up debris left behind by the contractor for whom they are working. Material generated by the trades is not being cleaned daily, but rather is being left to be cleaned weekly or bi-weekly whenever a general clean up is scheduled by Ellis-Don.

15. Local 506 recognizes that grievances have not been filed where members of the Applicants or the Intervenor have performed their own clean up prior to leaving the area or at least daily. In this case, clean up of material generated by various trades is not being performed daily, but rather weekly or biweekly by persons who are reassigned from the regular work of their trade to perform general clean up as part of a multi-trade crew made up primarily by employees of the sub-contractors on site supplemented with Labourers employed by Ellis-Don.

(d) The International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 (the "Asbestos Workers") agrees with the description provided by Labourers Local 506.

The employer parties chose not to file any materials. Nor did any of them attend the consultation. The Board therefor does not have the benefit of their perspective(s).

8Upon considering the materials filed and the representations made at the consultation, it appears that the differences between the parties are rather slight. Unfortunately, as became apparent at the consultation, the trade unions have become lost in their own words, often using different words to mean the same thing or using the same words to mean different things, all resulting in a confusion with respect to where the differences between them actually lie. In the result, it appears that the trade unions agree that:

(a) The work in dispute is the housekeeping clean up work which must be done on a construction job site in order to keep it safe. This includes the clean up, storage and removal of construction materials, and of the debris and garbage generated by construction work.

(b) It is important to keep the construction sites in question clean and orderly.

(c) A daily clean up should be done.

(d) Each trade should perform the daily clean up of its own materials and the debris it has created in performing its work.

(e) No trade should clean up materials used or debris generated by other trades.

(f) The general clean up required on these construction sites is the work of the construction labourers.

(g) The clean up on these job sites has been inadequate and that there are not enough construction labourers on the jobs to perform the necessary general clean up.

9The areas of disagreement between the parties are as follows:

(a) The Labourers assert that there have been periodic "all trades" clean ups in which members of various trades have been cleaning up materials used and debris generated by other trades. The other trade unions disagree.

(b) The Labourers assert that if the trades fail to do their daily clean up, the clean up work becomes the work of the construction labourer. The other trades dispute this and assert that the work of cleaning up the respective materials and debris is always theirs, regardless of how long it takes them to get around to doing it.

In short, it appears that the crux of the dispute between the parties is where the line of demarcation between daily trade clean up and general clean up work should be drawn.

10In the course of the consultation, the Board was referred to section 35(1) where the Regulations for construction projects under the Occupational Health and Safety Act (Ontario Regulation 213/91; R.R.O. 1990, Regulation 834). Counsel for UA Locals 46 and 853, and I.B.E.W. Local 353 submitted that neither this complaint, nor the Board generally, is a proper or appropriate form for enforcing the Occupational Health and Safety Act or Regulations. As far as it goes, that is probably correct. However, it is appropriate for the Board to consider this provision and to take it into account and disposing of this complaint, particularly in light of the second area of dispute between the parties.

11Section 35(1) of the Regulations for construction projects under the Occupational Health and Safety Act provides that:

35-(1) Waste material and debris shall be removed to a disposal area and reusable material shall be removed to a storage area as often as is necessary to prevent a hazardous condition arising and, in any event, at least once daily.

In our view, this provision contemplates a daily clean up in the construction job sites; that is, that waste material and debris be removed to a disposal area (which might be on the job site and perhaps even in the work area), and that raw or reusable material be neatly stored on the job site (perhaps in the work area itself). There is nothing before the Board which indicates that such a daily clean up cannot be done, although it may not be possible, practical or necessary to actually remove waste, debris or material from either the job site or the various work areas on a daily basis.

12Having regard to the materials filed and the representations of the parties, the Board concludes that:

(a) It is quite irrelevant whether or not there is a "all trades clean up practice since the real issue is who cleans up what and when.

(b) It is not appropriate that "all trades" crews be assigned to do general clean up work, either daily or on some other periodic basis.

(c) Each trade should perform a "trade clean up" on a daily basis.

(d) The clean up or removal of construction materials, including surplus materials, either to an on-site storage area or off site should be done by the trade which uses those materials.

(e) The clean up of debris within a work area should be done by the trade which generated the debris.

(f) The removal of debris from a work area, either to an on-site storage area or off-site should be done by construction labourers on a daily basis as part of a general clean up.

(g) Debris or surplus material which has been left behind by tradesmen who have left the work area for an extended period (i.e. for more than a few days) or permanently, should be cleaned up and removed by construction labourers.

(h) General clean up, whether on a daily or other periodic basis, and the final clean up, as that term is understood in the construction industry, should be done by construction labourers.

13The Board therefor finds that the responding employers Ellis-Don Limited, Groff and Associates Ltd. and the State Group Ltd. should have assigned the clean up work at the Oakville Trafalgar Hospital and the Princess Margaret Hospital job sites in accordance with the aforesaid; namely,

(a) a daily clean up by the trade of the debris or garbage generated by and materials used by that trade;

(b) a daily general clean up of debris or garbage by construction labourers;

(c) a daily clean up of trade debris or materials left behind by a trade by construction labourers;

(d) removal of trade materials by the trade which uses them;

(e) removal of debris, however generated, by construction labourers;

(f) any periodic general clean up and all final clean up by construction labourers.

14The Board therefor directs that all future clean up work on the job sites in question herein be assigned in accordance with the aforesaid and specifically paragraph 12.